The Offer. (a) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer. (b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock. (c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC. (d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN. (e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act. (f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer. (g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Crane Co /De/), Merger Agreement (Merrimac Industries Inc)
The Offer. (a) Within Provided that nothing shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof and in any event within ten business calendar days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent Subsidiary shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act▇▇▇▇ ▇▇▇) an offer the Offer to purchase any and all outstanding shares of Common Stock of the Company outstanding Shares at the purchase price of $16.00 per share of Common Stock (such priceOffer Price, or any higher price per share of Common Stock paid by Merger Sub pursuant net to the seller in cash. The Offer shall only be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and/or Merger Subsidiary, represents at least two-thirds of the total number of Shares outstanding on a fully diluted basis (the “Per Share AmountMinimum Condition”) and to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that, without the prior consent of the Company, (i) the Minimum Condition may not be waived and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I or modifies the conditions set forth in Annex I or amends any other term of the Offer in any manner adverse to the holders of Shares. Notwithstanding the foregoing, (x) without the consent of the Company, Merger Subsidiary shall have the right to extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled expiration date of the Offer, Merger Subsidiary shall extend the Offer from time to time until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Merger Subsidiary shall not terminate or withdraw the Offer other than in connection with the termination of this Agreement in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, on and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”).
(b) On the date of commencement of the Offer but after affording Offer, Parent and Merger Subsidiary shall (i) file with the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, thereto and including the exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement and other necessary appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (ii) cause the Offer Documents, along with the Securities and Exchange Commission notice of the Merger required by Section 3-106(d)(1) of Maryland Law (the “SECNotice of Merger”) and cause such documents ), to be disseminated to holders of shares Shares. Each of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub Subsidiary and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO, the Offer Documents or the Notice of Merger if and to the extent that it such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Sub Subsidiary shall use their reasonable best efforts to cause the Schedule TO, TO as so corrected or supplemented, to be filed with the SEC and the Offer Documents, Documents as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case case, as soon as reasonably practicable and as and to the extent required by applicable Federal U.S. federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Schedule TO and the Offer Documents (including each amendment or supplement thereto) time before they are any such document is filed with the SEC. , and Parent and Merger Sub Subsidiary shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documentscounsel. Parent and Merger Sub Subsidiary shall provide the Company and its counsel with (in writing, if written), and shall consult with the Company regarding, i) any comments (or other communications, whether written or oral) , that may be received by Parent, Merger Sub Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt thereof. The Company of those comments or other communications and its counsel shall be given (ii) a reasonable opportunity to review participate in the response of Parent and comment upon any proposed responses before they are filed with the SEC.
Merger Subsidiary to those comments and to provide comments on that response (d) The initial expiration date of the Offer to which reasonable and good faith consideration shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”given). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (CVS Caremark Corp), Merger Agreement (Longs Drug Stores Corp)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated pursuant to Article IX, Merger Sub shall (as such term is defined in and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-1(g)(3) promulgated 14d-2 under the Exchange Act, “Business Days”) after the Offer within a reasonable period of time following the date hereofof this Agreement, and in any event within ten (10) Business Days following the execution of this Agreement by the parties (or such other date as the parties may agree in writing).
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not validly withdrawn prior to any then scheduled Expiration Time that number of shares of Company Common Stock which, together with the shares of Company Common Stock beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the shares of Company Common Stock outstanding as of immediately prior to the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 2.1) (the “Minimum Condition”); (ii) the Company Board having granted each of Parent and Merger Sub an effective exemption from the restrictions on transfer and ownership of the Company’s stock contained in Article VII of the Company Charter (the “Ownership Limit Waivers”); and (iii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit A, as such conditions may be modified in accordance with this Agreement (together with the Minimum Condition and the Ownership Limit Waivers, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, any shares tendered in the Offer pursuant to guaranteed delivery procedures shall be included only if such shares have been delivered pursuant to such procedures. Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the its terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer (as promptly as practicable after the date Expiration Time. The Offer Price payable in respect of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares each share of Company Common Stock validly tendered and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase not validly withdrawn pursuant to the OfferOffer shall be paid to the seller in cash, without interest (subject to any withholding of Tax pursuant to Section 4.3), on the terms and subject to the conditions set forth in this Agreement.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Credit Property Trust Inc)
The Offer. (a) Within ten business days Provided that this Agreement shall not --------- have been terminated in accordance with Article VIII and so long as none of the events set forth in Annex A (the "Tender Offer Conditions") shall have occurred and no fact, occurrence or circumstance shall exist which would result in a failure to satisfy any of the Tender Offer Conditions, subject to the provisions of this Agreement, as such term is defined promptly as reasonably practicable, but in Rule 14d-1(g)(3no event later than seven (7) promulgated under Business Days following the Exchange Actfirst public announcement of the terms of this Agreement, “Business Days”) after the date hereofAcquiror shall commence, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock Act (as hereinafter defined), the Offer at the Offer Price. The initial expiration date of the Company at Offer shall be the purchase price twentieth Business Day following the date the Offer is commenced within the meaning of $16.00 per share Rule 14d-2 under the Exchange Act (the "Initial Expiration Date"). The obligation of Common Stock (such priceAcquiror to commence the Offer and accept for payment, or and pay for, any higher price per share of Common Stock paid by Merger Sub Shares tendered pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to shall be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto A, any of which, other than the Minimum Condition (the “Tender Offer Conditions”as defined in Annex A), may be waived by Parent shall cause Merger Sub to, or Acquiror in their sole discretion. Parent and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub Acquiror expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer; providedprovided -------- that, that without the prior written consent of the Company, Merger Sub neither Parent nor Acquiror shall not (i) decrease waive the Per Minimum Condition, (ii) reduce the number of Shares subject to the Offer, (iii) reduce the price per Share Amount or to be paid pursuant to the Offer, (iv) change the form of consideration payable in the Offer, (v) amend any term or add any condition of the Offer (other than by adding considerationincluding the conditions set forth on Annex A), in each case, in any manner that would adversely affect the shareholders of the Company in any material respect or (iivi) decrease extend the Initial Expiration Date, except as required by law and except that Parent and the Acquiror shall have the right, in their sole discretion, (A) to extend the expiration date of the Offer for up to ten (10) Business Days after the Initial Expiration Date if as of that date there shall not have been tendered a number of Shares that, when added to the number of Shares subject to the Voting Agreement, constitute at least ninety percent (90%) of the outstanding shares of Common Stock to be purchased in the Offeron a fully-diluted basis, (iiiB) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions elect to provide a subsequent offering period for the Offer in a manner adverse to accordance with Rule 14d-11 under the holders of shares of Common Stock, Exchange Act or (vC) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d)expiration date of the Offer from time to time for successive periods of up to 20 Business Days each, (vi) modify or amend but in no event later than the Tender Offer Conditions (other than to waive such Tender Offer Conditionsfour month anniversary of the date of this Agreement, except for if the Minimum Condition) or (vii) modify or amend conditions set forth in Annex A have not been met. If on any other term scheduled expiration date of the Offer, the Offer would have expired without any Shares being purchased because the conditions set forth in Annex A have not been met, Parent and Acquiror shall, at the case request of clauses the Company (vi) subject always to the terms and (viiconditions of this Agreement, including Article VIII), extend the expiration date of the Offer from time to time for successive periods of up to 20 Business Days each (but in any manner adverse no event later than the four-month anniversary of the date of this Agreement) unless Parent reasonably believes at such time that such conditions are not capable of being satisfied. Subject to the holders terms and conditions of shares the Offer set forth in Annex A, Acquiror shall pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon after the expiration of Common Stock in their capacities the Offer as holders of shares of Common Stockit is legally permitted to do so under applicable law.
(cb) No agreement or representation hereby is made or On the date of commencement of the Offer, Parent and Acquiror shall file with the Securities and Exchange Commission (the "SEC") and cause to be made by Parent or Merger Sub disseminated to holders of the Shares a Tender Offer Statement on Schedule TO with respect to information supplied by the Company expressly for inclusion inOffer, which shall contain (included as an Exhibit) or with respect to Company information derived from the Company SEC Filings that is included or incorporated incorporate by reference inan offer to purchase and a related letter of transmittal, a summary advertisement and a Rule 13e-3 Transaction Statement on Schedule 13E-3 (collectively, together with any supplements or amendments thereto, the "Offer Documents"). The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC. Each of Parent, Merger Sub Acquiror and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and Parent and Merger Sub shall Acquiror further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of shares of Common Stock, in each case as and to the extent required by applicable Federal federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEClaws. Parent and Merger Sub shall give reasonable and good faith consideration Acquiror agree to any comments or other additions, deletions or changes made by provide the Company and its counsel in writing with respect to copies of any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any written comments (written or oral) that may be received by Parent, Merger Sub Acquiror or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECDocuments.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Pine Holdings Inc), Merger Agreement (Pulaski Furniture Corp)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article VII, then (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue separate public announcements regarding the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in no event later than five Business Days from and after the date of such term is defined announcement, including the date of announcement as the first Business Day in accordance with Rule 14d-1(g)(3) promulgated 14d-2 under the Exchange Act, “commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer to purchase all of the outstanding shares of Company Common Stock at the Price Per Share. The initial expiration date of the Offer shall be the twentieth Business Days”) Day from and after the date hereofthe Offer is commenced, including the date of commencement as the first Business Day in accordance with Rule 14d-2 under the Exchange Act. The Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment and pay for shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) there being at least that number of shares of Company Common Stock representing a majority of the total issued and outstanding shares of Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer (the "MINIMUM SHARES") validly tendered and not withdrawn prior to the expiration of the Offer (the "MINIMUM CONDITION") and (ii) the satisfaction of the other conditions set forth in Annex A hereto, any of which conditions may be waived by Merger Sub in its sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub will (i) decrease the Price Per Share payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer set forth in ANNEX A hereto or impose additional conditions to the Offer, (iv) change the expiration date of the Offer or (v) otherwise amend, add or waive any term or condition of the Offer in any manner adverse to the holders of shares of Company Common Stock; PROVIDED, HOWEVER, that if on any scheduled expiration date of the Offer any conditions to the Offer have not been satisfied or waived, Merger Sub may, and at the request of the Company shall, from time to time, extend the expiration date of the Offer for up to 5 additional Business Days (but in no event shall Merger
(1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent more than 50% but less than 90% of the total issued and outstanding shares of Company Common Stock on a fully diluted basis; PROVIDED, HOWEVER, that in no event shall the extension permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Notwithstanding anything to the contrary in this Agreement, Parent may extend the Offer during (but only to the end of) the period in which the Company is attempting to cure a breach pursuant to Section 7.1(h). Parent and Merger Sub will, subject to the terms and conditions of this Agreement, use their best efforts to consummate the Offer. Assuming the prior satisfaction or waiver of all the conditions to the Offer set forth in ANNEX A hereto, and subject to the terms and conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (accept for payment and the Company shall cooperate pay for, in accordance with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (as soon as permitted under applicable law, recognizing that the date parties wish to close as expeditiously as possible following expiration or termination of acceptance for paymentthe waiting period under the HSR Act. Parent shall provide, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agentprovided, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub Sub, on a timely basis basis, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Rental Service Corp), Merger Agreement (Rental Service Corp)
The Offer. (a) Within ten Subject to the conditions of this ---------- Agreement, as promptly as practicable but in no event later than five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereofof public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and commence the Company shall cooperate with Merger Sub to) commence (Offer within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares applicable rules and regulations of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “"SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”"), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions obligation of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger of Parent to cause Sub shallto, upon commence the expiration of the Offer, --- Offer and accept for payment, and pay for (after giving effect to for, any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be are subject solely to the satisfaction or waiver conditions set forth in Exhibit A (any of which may be waived by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Conditionprovided that, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub may not waive the Minimum Tender Condition (as defined in Exhibit A)). The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (determined using Rule 14d-1(e)(6) of the SEC). Sub expressly reserves the right to modify the terms of the Offer, except that, without the written consent of the Company, Sub shall not (i) decrease reduce the Per Share Amount number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) modify or add to the conditions set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (other than by adding consideration), (iivi) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) otherwise amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Company Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger SubSub may, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in if at the Per Share Amountscheduled expiration date of the Offer any of the conditions to Sub's obligation to purchase shares of Company Common Stock are not satisfied or waived, until such time as such conditions are satisfied or waived, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all for a period of not more than five business days beyond the initial expiration date of the Offer, if on the date of such extension the Minimum Tender Offer Conditions are Condition has been satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered but less than 90% of the outstanding shares of Company Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (iii) extend the Offer (for any period required by any rule, regulation, interpretation or position of the date of acceptance for payment, SEC or the “Acceptance Date”), which acceptance may be by oral notice staff thereof applicable to the Paying Agent, Offer and (iv) extend the Offer for any reason for a period of not more than two business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (iii) of this sentence (it being understood that Sub may not extend the Offer pursuant to this clause (iv) if it has previously extended the Offer pursuant to clause (ii) on of this sentence). On the Acceptance Dateterms and subject to the conditions of the Offer and this Agreement, deposit or Sub shall, and Parent shall cause to be deposited with the Paying AgentSub to, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Company Common Stock so accepted for payment. Parent shall provide or cause validly tendered and not withdrawn pursuant to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Diatide Inc), Merger Agreement (Schering Berlin Inc)
The Offer. (a) Within ten On the terms and subject to the conditions of this Agreement, within seven (7) business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after from the date hereof, Merger Sub shall, and Parent the Buyer shall (or shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Offer to purchase any and all outstanding shares of Company Common Stock for consideration per share equal to $5.80 (the “Offer Consideration”) in cash. On the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this Agreement, the Buyer shall (or shall cause Merger Sub to) accept for payment all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer and shall pay the Offer Consideration for all such shares of Company Common Stock promptly after acceptance. The obligation of the Buyer (either directly or through Merger Sub) to commence the Offer and to accept for payment and pay the Offer Consideration for shares of Company Common Stock validly tendered in the Offer and not properly withdrawn shall be subject to the conditions set forth in Annex I to this Agreement (which is annexed to this Amendment).
(b) The initial expiration date of the Offer shall be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rules 14d-1(g)(3) and 14d-2 under the Exchange Act) an offer ). If on or prior to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms then scheduled expiration date of the Offer, all of the conditions to the Offer (including the Minimum Condition and all other conditions and requirements set forth in Annex I) shall not have been satisfied, or waived by the Buyer or Merger Sub if permitted hereunder, the Buyer shall (and shall cause Merger Sub to) extend the Offer for periods of up to ten (10) business days each until the earlier of (x) the date on which the Minimum Condition has been met and all of the conditions and requirements set forth in Annex I are satisfied or waived or (y) the date on which this Agreement is terminated in accordance with Article VIII. The Buyer expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify any term or condition of the Offer in its sole discretion; provided, however, that, without the prior written consent of the Company, the Buyer shall not:
(i) change the form of consideration payable in the Offer, decrease the Offer Consideration, or decrease the number of shares of Company Common Stock sought pursuant to the Offer;
(ii) extend the expiration date of the Offer except (A) as required by this Agreement or applicable law (including for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the “Per Share AmountSEC”) or the staff thereof), or (B) in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and shallregulations of the SEC;
(iii) waive the Minimum Condition;
(iv) amend any term of the Offer in any manner adverse to holders of shares of Company Common Stock; or
(v) impose any condition to the Offer not set forth in Annex I. Neither the Buyer nor Merger Sub shall terminate or withdraw the Offer prior to the then scheduled expiration of the Offer unless this Agreement is validly terminated in accordance with its terms, on in which case the Buyer shall (or shall cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one (1) business day) after such termination of this Agreement. The Buyer may, without the consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Exchange Act following its acceptance for payment of shares of Company Common Stock in the Offer.
(c) On the date of commencement of the Offer but after affording Offer, the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, Buyer shall (or shall cause Merger Sub to) file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with respect to the Securities and Exchange Commission Offer. The Schedule TO shall contain an offer to purchase (the “SECOffer to Purchase”) ), a form of the related letter of transmittal, and cause such ancillary documents and instruments pursuant to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with which the Offer will be made (collectively, together with any supplements or amendments thereto, the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent Buyer and Merger Sub shall cause provide the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Schedule TO and the other Offer Documents (including each amendment or supplement thereto) before they are filed prior to the filing thereof with the SEC. Parent , and the Buyer and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). The Buyer and Merger Sub agree that the Offer Documents shall comply in all material respects with the requirements of applicable U.S. federal securities laws and, on the date first filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant, agreement, representation or warranty is made by the Buyer or Merger Sub with respect to information supplied by the Company or any of its stockholders for inclusion or incorporation by reference in the Offer Documents. Parent The Buyer and Merger Sub shall take all steps necessary to cause the Offer Documents to be disseminated to holders of shares of Company Common Stock, as and to the extent required by applicable U.S. federal securities laws. Each of the Buyer, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Buyer and Merger Sub shall take all steps necessary to amend or supplement the Schedule TO and, as applicable, the Offer Documents and to cause the Schedule TO as so amended and supplemented to be filed with the SEC and the Offer Documents as so amended and supplemented to be disseminated to holders of shares of Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Buyer and Merger Sub shall provide the Company and its counsel with (in writing, if written), and shall consult with a copy of any written comments or telephonic notification of any oral comments the Company regarding, any comments (written or oral) that may be received by ParentBuyer, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The , shall provide the Company and its counsel shall be given a reasonable opportunity to participate in the formulation of any response to any such comments of the SEC or its staff (including a reasonable opportunity to review and comment upon on any proposed such response, which comments the Buyer and Merger Sub shall give reasonable and good faith consideration), and shall provide the Company and its counsel with a copy of any written responses before they are filed with thereto and telephonic notification of any oral responses thereto of the SECBuyer or Merger Sub or their counsel.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent Buyer shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any and all shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(ge) Promptly after The Buyer and Merger Sub shall be entitled to deduct and withhold from the Acceptance Dateconsideration otherwise payable pursuant to the Offer such amounts as the Buyer OR Merger Sub, as the Company shall take all action requested by Parent necessary case may be, reasonably determines that it is required to elect deduct and withhold with respect to be treated the making of such payment under the Internal Revenue Code of 1986, as a amended (the “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make Internal Revenue Code”), or under any necessary filings and disclosures associated with such statusother applicable law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Skyworks Solutions, Inc.), Agreement and Plan of Merger (Advanced Analogic Technologies Inc)
The Offer. (a) Within Provided that this Agreement shall not have been terminated in accordance with Article IX, Newco shall commence the Offer not later than the fifth business day from and including the date of initial public announcement of this Agreement. Newco shall accept for payment Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer shall have been satisfied or waived by Newco. The obligation of Newco to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to such conditions and to the further condition that a number of Shares representing not less than a majority of the Shares then outstanding on a fully diluted basis shall have been validly tendered and not withdrawn prior to the final expiration date of the Offer (the "Minimum Condition"). Unless previously approved by the Company in writing, no change in the Offer may be made (i) which decreases the price per Share payable in the Offer, (ii) which changes the form of consideration to be paid in the Offer, (iii) which reduces the maximum number of Shares to be purchased in the Offer or the Minimum Condition, (iv) which imposes conditions to the Offer in addition to those set forth in Annex A hereto or which modifies the conditions set forth in Annex A in a manner adverse to the holders of Shares or (v) which amends any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Newco may, without the consent of the Company, (i) extend the Offer on one or more occasions for up to ten business days for each such extension beyond the then scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer), if at the then scheduled expiration date of the Offer any of the conditions to Newco's obligation to accept for payment and pay for the Shares shall not be satisfied or waived, until such time as such term conditions are satisfied or waived (and, at the request of the Company, Newco shall, subject to Parent's right to terminate this Agreement pursuant to Article IX, extend the Offer for additional periods, unless the only conditions not satisfied or earlier waived on the then scheduled expiration date are one or more of the Minimum Condition and the conditions set forth in paragraphs (b) and (e) of Annex A hereto, provided that (x) if the only condition not satisfied is defined 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 (b) of Annex A 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 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 "SEC") or the staff thereof applicable to the Offer and (iii) extend the Offer for an aggregate period of not more than 5 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if there shall not have been tendered sufficient Shares so that the Merger could be effected without a meeting of the Company's shareholders in Rule 14d-1(g)(3) promulgated under accordance with Section 180.1104 of the Exchange ActWisconsin Business Corporation Law (the "BCL"). Subject to the terms and conditions of the Offer and this Agreement, “Business Days”) after the date hereof, Merger Sub Newco shall, and Parent shall cause Merger Sub Newco to, (pay for all Shares validly tendered and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub not withdrawn pursuant to the terms Offer that Newco becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer, the “Per Share Amount”.
(b) and shall, As soon as practicable on the date of commencement of the Offer but after affording Offer, Newco shall file with the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all any supplement or amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “"Offer Documents”"), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documentslaws. Parent, Merger Sub Newco and the Company each agrees agree promptly to correct any information provided by it them for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent respect and Merger Sub shall Newco further agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities Lawslaws. The To the extent practicable, the Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable an opportunity to review and comment upon the Offer Documents and any proposed responses before they are filed amendments thereto prior to the filing thereof with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Taqu Inc), Merger Agreement (Giddings & Lewis Inc /Wi/)
The Offer. (a) Within Subject to the conditions of this Agreement, as promptly as practicable but in no event later than ten business days (as such term is defined 10) Business Days after the date that the Company executes this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Exchange Act. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Annex A hereto. The initial expiration date of the Offer shall be the 20th Business Day following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated of the SEC). Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) waive or modify the Minimum Tender Condition (as defined in Annex A) to the extent that Merger Sub or Parent would purchase 50% or less of the Fully Diluted Shares or to increase the Minimum Tender Condition, (iv) add to the conditions set forth in Annex A or modify any condition set forth in Annex A in any manner adverse to the Company Common Stockholders, (v) extend the Offer, or (vi) modify the form of consideration payable in the Offer. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions (other than the Minimum Tender Condition) to Merger Sub’s obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, including, without limitation, HSR Clearance, (ii) extend the Offer for a period of not more than ten (10) Business Days beyond the initial expiration date of the Offer, if on the date of such extension less than 90% of the outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (iii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (iv) extend the Offer, one time only, for any reason for a period of not more than fifteen (15) Business Days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence. In addition if at the Exchange Actotherwise scheduled expiration date of the Offer any condition to the Offer is not satisfied, “Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company for one period of not more than twenty (20) Business Days”. In addition, Merger Sub may make available a “subsequent offering period,” in accordance with Rule 14d-11 of the SEC, of not less than ten (10) after Business Days. On the date hereofterms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (iA) as soon as practicable after becoming obligated to purchase shares of Company Common Stock pursuant to the Expiration DateOffer, accept for payment and pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (iiB) on the closing date of the Offer (which shall be not more than five (5) Business Days following the Acceptance Date), deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount Offer Price for all such accepted shares of Company Common Stock and (iiiC) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Company Common Stock so accepted for payment.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC and deliver to the Company and its counsel a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company Common Stockholders, in each case as and to the extent required by applicable Federal securities laws. To the extent practicable, the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel as promptly as practicable with copies of any correspondence that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents as promptly as practicable after receipt of those comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(gd) Promptly after Subject to Section 5.1 of this Agreement, if, between the date of this Agreement and the Acceptance Date, the outstanding shares of Company Common Stock shall take all action requested have been changed into a different number of shares or a different class, solely by Parent necessary reason of any stock dividend, subdivision, reclassification, recapitalization, split, reverse split, combination or exchange of shares or any other similar transaction, the Offer Price shall be correspondingly adjusted to elect reflect such stock dividend, subdivision, reclassification, recapitalization, split, reverse split, combination or exchange of shares or any other similar transaction and to be treated provide to the Company Common Stockholders the same economic effect as a “controlled company” as defined contemplated by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with this Agreement prior to such statusaction.
Appears in 2 contracts
Sources: Merger Agreement (AMICAS, Inc.), Merger Agreement (Merge Healthcare Inc)
The Offer. (a) Within ten business days (Subject to the conditions of this ---------- Agreement including those set forth in Annex B hereto, as such term is defined promptly as practicable but in Rule 14d-1(g)(3) promulgated under the Exchange Act, “no event later than five Business Days”) Days after the date hereofof this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, (and commence the Company shall cooperate with Merger Sub to) commence (Offer within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer applicable Regulations of the SEC. The obligation of Purchaser to, and of Parent to purchase all outstanding cause Purchaser to, commence the Offer or accept for payment, or pay for, any shares of Company Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub tendered pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to shall be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration any of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall which may be subject solely to the satisfaction or waiver waived by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), Purchaser in its sole discretionand reasonable judgment provided that, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub Purchaser may not -------- waive the Minimum Tender Condition) and to the other provisions of this Agreement. The initial expiration date of the Offer shall be the 20th Business Day following the commencement of the Offer (determined using Rule 14d-1(e)(6) under the Exchange Act). Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Purchaser shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be purchased in paid pursuant to the Offer, (iii) amend modify or waive satisfaction of add to the Minimum Condition (as defined conditions set forth in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), B in any manner adverse to the holders of shares of Company Common Stock Stock, (iv) except as provided in their capacities as the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Purchaser's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived; provided, -------- however, that the expiration date shall not be later than the Termination Date ------- as a result of such extension, (ii) extend the Offer for a period of not more than 10 Business Days beyond the expiration date that would otherwise be permitted under clause (i) of this sentence, if on the date of such extension (x) less than 90% of the Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer and (y) Purchaser has permanently waived all of the conditions to the Offer set forth in Annex B (other than conditions that are not legally capable of being satisfied and conditions that have not been satisfied because of the willful or intentional action or inaction of the Company), and (iii) extend the Offer for any period required by any Regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. If, on any scheduled expiration date of the Offer, any of the conditions set forth in Annex B have not been satisfied or waived and such unsatisfied conditions are still capable of being satisfied, the Company may require Purchaser to extend the expiration date of the Offer for a period of not more than 10 Business Days; provided, however, that Purchaser shall not be -------- ------- required to extend the expiration date later than the Termination Date. On the terms and subject to the conditions of the Offer and this Agreement, Purchaser shall, and Parent shall cause Purchaser to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Purchaser becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent and Purchaser shall not be required to commence the Offer in any jurisdiction other than the United States of America.
(c) No agreement or representation hereby is made or On the date of the commencement of the Offer, Purchaser shall be made by Parent or Merger Sub file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to information supplied by the Company expressly for inclusion inOffer ("Schedule 14D-1") which will contain an offer to purchase and form of the -------------- related letter of transmittal (the Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inamendments thereto, collectively, the "Offer Documents"). Parent, Merger Sub Purchaser, --------------- and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. respect and Parent and Merger Sub shall Purchaser further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of shares of Company Common Stock, in each case case, as and to the extent required by applicable Federal federal securities Laws. The Parent and Purchaser agree to give the Company and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed prior to the filing of the Offer Documents with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration Purchaser agrees to any comments or other additions, deletions or changes made by provide the Company and its counsel in writing with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that Purchaser and its counsel may be received by Parent, Merger Sub or their counsel receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
The Offer. (a) Within ten As promptly as practicable (but in no event later than five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date public announcement of the execution hereof), Merger Sub shall, and Parent Acquisition shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the "Exchange Act")) an a tender offer to purchase (the "Offer") for all of the outstanding shares of Company Common Stock of (including the Company Rights) at the purchase a price of $16.00 15.50 per share of Company Common Stock Stock, net to the seller in cash (such price, or any such higher price per share of Common Stock as may be paid by Merger Sub pursuant in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the terms expiration of the Offer, that number of shares of Company Common Stock which represents at least a majority of the “Per Share Amount”Company Common Stock outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto, and shall consummate the Offer in accordance with its terms ("fully diluted basis" means issued and outstanding Company Common Stock and Company Common Stock subject to issuance under warrants and outstanding employee stock options). The obligations of Acquisition to accept for payment and to pay for any Company Common Stock validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex A hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Acquisition shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of shares of Company Common Stock sought, or amend any other condition of the Offer in any manner adverse to the holders of the Company Common Stock without the prior written consent of the Company; provided, however, that if on the initial scheduled expiration date of the Offer which shall be 20 business days after the date of the Offer is commenced, the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act (as defined below) to have expired or been terminated, Acquisition shall extend the expiration date from time to time until two business days after the expiration of the waiting period under the HSR Act. Acquisition shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Company Common Stock tendered as soon as it is legally permitted to do so under applicable law; provided, however, that if, immediately prior to the initial expiration date of commencement of the Offer but after affording (as it may be extended), the Company Common Stock tendered and its counsel reasonable opportunity not withdrawn pursuant to review the Offer equals less than 90% of the outstanding Company Common Stock, Acquisition may extend the Offer one time for a period not to exceed twenty business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer.
(b) As soon as practicable on the date the Offer is commenced, Parent and comment thereon Acquisition shall file with the United States Securities and giving reasonable and good faith consideration to any comments made thereby, file Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto, thereto and including the exhibits thereto, the “"Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock14D-1"). The Schedule 14D-1 will include, as required by Rule 14d-4 promulgated under the Exchange Actexhibits, in each case in connection with the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents”"), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal federal securities Laws. Subject laws and, on the date filed with the SEC and on the date first published, sent or given to the terms and conditions Company's shareholders, shall not contain any untrue statement of this Agreement and a material fact or omit to state any material fact required to be stated therein or necessary in order to make the satisfaction or waiver statements therein, in light of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”)circumstances under which they were made, not misleading, except that no representation is made by Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect or Acquisition with respect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held information furnished by the Company to Parent or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d)Acquisition, in its sole discretionwriting, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes expressly for inclusion in the terms Offer Documents. The information supplied by the Company to Parent or Acquisition, in writing, expressly for inclusion in the Offer Documents and conditions of the Offer; provided, that without the prior written consent of by Parent or Acquisition to the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in writing, expressly for inclusion in the Offer Schedule 14D-9 (other than by adding consideration), (iias hereinafter defined) decrease the number will not contain any untrue statement of shares of Common Stock a material fact or omit to state any material fact required to be purchased stated therein or necessary in order to make the Offerstatements therein, (iii) amend or waive satisfaction in light of the Minimum Condition (as defined in Annex B)circumstances under which they were made, (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stockmisleading.
(c) No agreement or representation hereby is made or shall Each of Parent and Acquisition will take all steps necessary to cause the Offer Documents to be made by Parent or Merger Sub filed with respect the SEC and to information supplied by be disseminated to holders of the Company expressly for inclusion inCommon Stock, or with respect in each case as and to Company information derived from the Company SEC Filings that is included or incorporated extent required by reference inapplicable federal securities laws. Each of Parent and Acquisition, on the Offer Documents. Parentone hand, Merger Sub and the Company each agrees Company, on the other hand, will promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. respect and Parent and Merger Sub shall Acquisition will take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to holders of the Company’s stockholdersCompany Common Stock, in each case as and to the extent required by applicable Federal federal securities Lawslaws. The Company and its counsel shall be given a reasonable the opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) the Schedule 14D-1 before they are it is filed with the SEC. In addition, Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by Acquisition will provide the Company and its counsel in writing with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writingcomments, if written), and shall consult with the Company regarding, any comments (whether written or oral) that may be received by , Parent, Merger Sub Acquisition or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENcomments.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Ivex Packaging Corp /De/), Merger Agreement (Ivex Packaging Corp /De/)
The Offer. (a) Within ten business days (as such term is defined Subject to the provisions contained in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereoffollowing sentence, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on Offer as promptly as reasonably practicable after the date of commencement of this Agreement. If the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO Company: (together i) shall have fully cooperated with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case Parent in connection with the Offer (and the “preparation of the Offer Documents”), including by promptly providing to Parent any comments regarding the Offer Documents from the Company and its advisors, and (ii) shall consummate be prepared to file with the OfferSEC, subject and to disseminate to holders of Company Common Stock, the terms and conditions hereof and thereof. The Schedule 14D-9 on the date Parent files the Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”)SEC, then Parent shall cause Merger Sub to, and Merger Sub shall, upon commence the expiration Offer within seven (7) Business Days after the date of this Agreement; provided, however, that Merger Sub shall not be required to commence the Offer if (w) any of the conditions set forth in clauses (a), (b), (c), (g), (h), (j), (k), (l) and (n) of Annex I shall not be satisfied, or (x) the Company shall not be prepared to file immediately with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9 (the date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”). The obligation of Merger Sub (and the obligation of Parent to cause Merger Sub) to accept for payment, and pay for (after giving effect to for, any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered pursuant to the Offer and shall be subject to the satisfaction of or (if permitted) waiver of (y) the condition that there shall be validly tendered (not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for including any shares of Company Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(cprocedures for guaranteed delivery) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the withdrawn a number of shares of Company Common Stock to be purchased in the Offerthat, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify together with any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Company Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made owned by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and immediately prior to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause Acceptance Time, represents more than 50% of the Schedule TO, as so corrected or supplemented, to be filed with Adjusted Outstanding Share Number (the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written“Minimum Condition”), and shall consult with (z) the Company regarding, any comments other conditions set forth in Annex I hereto (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Documents promptly after receipt thereofConditions”). The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms For purposes of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Adjusted Outstanding Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as Number” shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer sum of: (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (wA) the aggregate number of shares of Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days Common Stock issued and outstanding immediately prior to the Outside DateAcceptance Time, plus (xB) an additional number of shares up to (but not exceeding) the Company publicly announces its reaffirmation aggregate number of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Company Common Stock issuable upon the conversion, exchange or exercise, as applicable, of all options, warrants and other rights to acquire, or securities convertible into or exchangeable for, Company Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event outstanding immediately prior to the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may Time (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent other than potential (but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under actual) dilution attributable to the Exchange Act.
(f) Promptly upon Top-Up Option). Subject to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b)and the terms and conditions of this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, (i1) accept for payment all shares of Company Common Stock validly tendered (and not withdrawn) pursuant to the Offer as soon as practicable after Merger Sub is permitted to do so under applicable Legal Requirements, and (2) pay the Expiration Date, accept Offer Price in exchange for each share of Company Common Stock accepted for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (U.S. Renal Care Inc), Merger Agreement (Dialysis Corp of America)
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement shall not have --------- been terminated in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereofaccordance with Section 7.01, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange ActAct (as hereinafter defined) an offer the Offer as promptly as practicable after the date hereof, but in no event later than five business days after the initial public announcement of Parent's intention to purchase all outstanding shares commence the Offer. The Offer shall have a scheduled Expiration date 20 business days following commencement of Common Stock the Offer (the "Initial Expiration Date"). Notwithstanding any contrary provision of this Agreement, Merger Subsidiary (i) if so requested by the Company at the purchase price direction of $16.00 per share the Special Committee, will extend the Offer for up to ten business days following in the event upon the Initial Expiration Date, Merger Subsidiary shall not have accepted for payment Shares pursuant to the Offer as a result of Common Stock (such price, one or any higher price per share more of Common Stock paid the conditions set forth in Annex A hereto not having been satisfied or waived by Merger Sub Subsidiary and (ii) at its discretion may determine from time to time to extend the Offer for no more than an aggregate of ten business days following the later of the Initial Expiration Date and the first expiration date thereafter on which all of the conditions set forth in Annex A shall have been satisfied or waived, if applicable, provided, however, that in the event that Parent extends the Offer pursuant to this clause (ii) all of the conditions to the Offer shall be deemed to have been irrevocably satisfied for all purposes of the Offer and shall not be asserted by Parent as a basis for not consumating the Offer and (iii) may, from time to time at its discretion, extend the Offer in increments of up to ten business days each, if one or more of the conditions set forth in Annex A shall not have been satisfied or waived. Parent shall not accept for payment any Shares tendered pursuant to the Offer unless there shall have been validly tendered and not withdrawn prior to the expiration of the Offer such number of Shares which, constitutes at least a majority of the Shares not beneficially owned by Parent or Merger Subsidiary on a fully diluted basis (the "Minimum Condition"). In addition to the Minimum Condition, the obligation of Parent to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Annex A hereto. Parent expressly reserves the right to increase the Per Share Amount. Without the prior consent of the Special Committee, Parent will not (i) decrease the Per Share Amount (ii) change the number of Shares to be purchased in the Offer (iii) change the form of the consideration payable in the Offer (iv) amend or add to the conditions to the Offer set forth in Annex A hereto; or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of Shares. Under no circumstances shall Parent waive the Minimum Condition. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Following the satisfaction or waiver of the conditions to the Offer, Parent shall cause Merger Subsidiary to accept for payment and pay for, in accordance with the terms of the Offer, all Shares validly tendered pursuant to the “Per Share Amount”Offer and not withdrawn, as soon as it is permitted to do so pursuant to applicable law.
(b) and shall, As soon as reasonably practicable on the date of commencement of the Offer but after affording Offer, Parent shall file with the Company Securities and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file Exchange Commission (the "SEC")
(i) a Tender Offer Statement on Schedule TO 14D-1, including the exhibits thereto (together with all amendments and supplements thereto, the "Schedule 14D-1"), including the exhibits thereto, the “Schedule TO”) and all other necessary documents thereto with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant respect to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease a Rule 13e-3 Transaction Statement on Schedule 13E-3, including the number of shares of Common Stock to be purchased in exhibits thereto (together with all amendments and supplements thereto, the Offer, (iii"Schedule 13E-3") amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions with respect to the Offer and the other transactions contemplated hereby (the "Transactions"). The Schedule 14D-1 and the Schedule 13E-3 shall contain or modify any conditions shall incorporate by reference an offer to purchase (the "Offer in a manner adverse to the holders of shares of Common Stock, (vPurchase") make any change in the Offer that would require an extension or delay and forms of the then current Expiration Date; providedrelated letter of transmittal and any related summary advertisement (the Schedule 14D-1, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inSchedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Parent, Merger Sub Subsidiary and the Company each agrees promptly agree to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that it which shall have become false materially incorrect or misleading in any material respect. misleading, and Parent and Merger Sub shall Subsidiary further agree to take all steps necessary to cause the Schedule TO, 14D-1 and the Schedule 13E-3 as so corrected or supplemented, to be filed with the SEC and the other Offer Documents, Documents as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities LawsLaw (as defined hereinafter). The Company Company, the Special Committee and its their respective counsel shall be given a reasonable the opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed and any amendments thereto prior to the filing thereof with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub Subsidiary shall provide the Company Company, the Special Committee and their respective counsel with (in writing, if written), and shall consult with the Company regarding, a copy of any written comments (written or oral) that telephonic notification of any oral comments Parent or Merger Subsidiary may be received by Parent, Merger Sub or their counsel receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The Company Parent and its counsel shall be given provide the Company and the Special Committee and their respective counsel with a reasonable opportunity to review and comment upon any proposed responses before they are filed participate in all communications with the SEC.
(d) The initial expiration date of SEC and its staff, including any meetings and telephone conferences, relating to the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, Transactions or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Rexel Sa), Merger Agreement (Pinault Printemps Redoute Sa Et Al)
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement shall not have been terminated in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, accordance with Section 8.1 and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock none of the Company at the purchase price of $16.00 per share of Common Stock (such price, events or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in subparagraphs (a) through (d) of Annex B hereto I shall have occurred and be continuing and not have been waived by Parent or Merger Sub, as promptly as reasonably practicable and, in any event, within ten (10) Business Days of the “Tender Offer Conditions”)date of this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, upon shall commence (within the expiration meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as practicable after the date of this Agreement. The date on which Merger Sub commences the Offer, accept for paymentwithin the meaning of Rule 14d-2 under the Exchange Act, and pay for (after giving effect is referred to any required withholding or stock transfer Tax), all shares in this Agreement as the “Offer Commencement Date”. Each share of Company Common Stock validly tendered pursuant accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer and not validly withdrawn on shall be purchased for cash at the Acceptance DateOffer Price. The obligation obligations of Merger Sub to accept for payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for) any shares of Company Common Stock validly tendered on or prior to the expiration of the Offer (as it may be extended in accordance with this Agreement) and not properly withdrawn shall be subject solely to (i) there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the satisfaction expiration of the Offer (as it may be extended in accordance with this Agreement) that number of shares of Company Common Stock which, when added to any shares of Company Common Stock owned by Parent or waiver by any of its Subsidiaries, represents a majority of the shares of Company Common Stock outstanding on a fully-diluted basis (the “Minimum Condition”), and (ii) the other events or conditions set forth in Annex I. Subject to the terms and conditions of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to), in accordance with the terms of the Tender Offer, consummate the Offer Conditions. The Per Share Amount shall be net and accept for payment and pay for all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the seller Offer promptly after expiration of the Offer; provided, however, that (i) if on the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as it may be extended in cashaccordance with this Agreement), without interestany of the events or conditions to the Offer set forth on Annex I shall exist and, subject to reduction the provisions of this Agreement, shall not have been waived by Merger Sub, Merger Sub expressly reserves the right to (and, in such case, Parent shall cause Merger Sub to), from time to time, extend the Offer for additional successive periods of up to twenty (20) Business Days per extension (with the length of such periods to be determined by Parent), until all of the conditions set forth in Annex I are satisfied or validly waived in order to permit the Acceptance Time to occur, and (ii) Merger Sub shall extend the Offer from time to time for any period required by any rule, regulation, interpretation or position of the SEC or the staff of the SEC applicable withholding or stock transfer Taxes payable by such sellerto the Offer. No If less than 90% of the number of outstanding shares of Company Common Stock held by the Company or its Subsidiaries shall be tendered are accepted for purchase pursuant to the Offer.
, Merger Sub may, in its sole discretion (band without the consent of the Company or any other Person), elect to provide for one or more subsequent offering periods (of up to twenty (20) Parent on behalf of Business Days in the aggregate) in accordance with Rule 14d-11 under the Exchange Act. Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, time to waive any Tender Offer Condition, of the conditions set forth in Annex I (other than the Minimum Condition and the condition set forth in subparagraph (e) of Annex I) or to increase the Per Share Amount Offer Price or to make any other changes in the terms and conditions of the Offer; providedprovided that, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or Offer Price, change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (iii) amend change, modify or waive satisfaction of the Minimum Condition (as defined in Annex B)Condition, (iv) impose additional conditions to the Offer or modify or change any conditions condition to the Offer in a manner materially adverse to the holders of shares of Company Common StockStock or in a manner which would delay consummation of the Offer, (v) make any change in reduce the time period during which the Offer that would require an shall remain open or, except for any extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d)hereunder, (vi) extend or otherwise change the expiration date of the Offer, or amend, modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend supplement any other term of the Offer, in the case of clauses (vi) and (vii), Offer in any manner adverse to the holders of shares of Company Common Stock or in their capacities a manner which would delay consummation of the Offer.
(b) Subject to the first sentence of Section 2.1(a), as promptly as reasonably practicable and, in any event, no later than the Offer Commencement Date, in order to reflect the execution of this Agreement and the terms hereof, Parent shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which will contain a form of a letter of transmittal (such schedule together with the documents included therein pursuant to which the Offer is made, and any amendments and supplements thereto, the “Offer Documents”). Subject to the Company’s compliance with Section 2.2(c), Parent and Merger Sub shall cause the Offer Documents to be disseminated to holders of shares of Company Common Stock.
(c) No agreement or representation hereby is made or shall be made Stock as required by applicable U.S. federal securities Laws. Parent or and Merger Sub with respect to information supplied by Sub, on the Company expressly for inclusion inone hand, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees Company, on the other hand, agree to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respectrespect or as otherwise required by Law. Parent and Merger Sub shall further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case holders of shares of Company Common Stock as and to the extent required by applicable Federal U.S. federal securities Laws. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 2.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additionsIn addition, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company and its counsel with (in writing, if written), and shall consult with the Company regarding, i) any comments (or communications, whether written or oral) , that may be received by Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Merger Sub’s, as the case may be, receipt thereof. The Company of such comments, and its counsel shall be given (ii) a reasonable opportunity to review participate in the response of Parent or Merger Sub to those comments and comment upon to provide comments on that response.
(c) In the event this Agreement is terminated pursuant to Section 8.1 prior to the Acceptance Time, Parent and Merger Sub shall promptly terminate the Offer without accepting any proposed responses before they are filed with shares of Company Common Stock previously tendered and Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the SECregistered holders thereof.
(d) The initial expiration date If any portion of the Offer shall Price is to be at midnightpaid to a Person other than the Person in whose name the tendered shares of Company Common Stock are registered, New York City time, the amount of any stock transfer or other similar Taxes (whether imposed on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such dateregistered holder(s), or such subsequent date other Person, or otherwise) payable on account of such transfer to which the expiration of such other Person shall be deducted from the Offer is extended pursuant to and Price for the exchange of such shares of Company Common Stock in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any unless evidence satisfactory to Merger Sub of the Tender Offer Conditions payment of such Taxes, or exemption therefrom, is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENsubmitted.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Superior Well Services, INC), Merger Agreement (Nabors Industries LTD)
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement shall not have been terminated in Rule 14d-1(g)(3) promulgated under accordance with Article VIII and none of the Exchange Actevents or conditions set forth in Annex A shall have occurred and be existing, “Business Days”) after the date hereofCardinal shall cause Subcorp to commence, Merger Sub and Subcorp shall, and Parent shall cause Merger Sub towithin 12 business days, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) an offer the Offer. Cardinal shall cause Subcorp to purchase all outstanding accept for payment, and Subcorp shall accept for payment, the shares of BLP Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub that have been validly tendered and not withdrawn pursuant to the terms Offer at the earliest time following the initial Expiration Date (as defined in Section 1.1(c)) at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment additional shares of BLP Common Stock validly tendered during any subsequent offering period to the extent Cardinal and Subcorp determine to provide a subsequent offering period in connection with the Offer. Subcorp shall not accept for payment any shares of BLP Common Stock tendered pursuant to the Offer unless there shall have been validly tendered and not withdrawn prior to the Expiration Date such number of shares of BLP Common Stock that satisfy the Minimum Condition (as defined in Annex A). Subcorp expressly reserves the right to increase the Per Share Amount and to waive any condition of the Offer, except the “Minimum Condition. Without the prior written consent of BLP, Subcorp shall not decrease the Per Share Amount”) Amount or change the form of consideration payable in the Offer, decrease the number of shares of BLP Common Stock sought to be purchased in the Offer or waive the Minimum Condition. The Per Share Amount shall be paid less any required withholding of Taxes (as defined in Section 5.12(f)), upon the terms and shall, on subject to satisfaction or waiver of the date of commencement conditions of the Offer but after affording set forth in Annex A. BLP agrees that no shares of BLP Common Stock held by BLP or any of its subsidiaries will be tendered in the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, Offer.
(b) Subcorp shall file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SECCommission”) a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include an offer to purchase, form of transmittal letter and cause such documents to be disseminated to holders form of shares notice of Common Stockguaranteed delivery (together with any supplements or amendments thereto, as required by Rule 14d-4 promulgated under the Exchange Actcollectively, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal United States federal securities Lawslaws. Subject to the terms and conditions of this Agreement The information provided and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”)be provided by BLP, Parent shall cause Merger Sub to, Cardinal and Merger Sub shall, upon the expiration of the Offer, accept Subcorp for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable use in the Offer (other than by adding consideration)Documents shall not, (ii) decrease on the number of shares of Common Stock date filed with the Commission and on the date first published or sent or given to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of BLP Common StockStock (the “BLP Stockholders”), (v) as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make any change the statements therein, in the Offer that would require an extension or delay light of the then current Expiration Date; providedcircumstances under which they were made, howevernot misleading. BLP, that this clause (v) shall not limit the right of Parent Cardinal and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company Subcorp each agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent , and Merger Sub shall Cardinal further agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC Commission and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and BLP Stockholders to the extent required by applicable Federal United States federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEClaws.
(dc) The initial expiration date of Subject to the terms and conditions thereof, the Offer shall be remain open until at least midnight, New York City time, on the 20th Business Day following date that is 20 business days after the commencement date the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such dateas so extended, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the also an “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing; provided, unless this Agreement is terminated in accordance with ARTICLE SEVENhowever, Merger Subthat, without Parent or Merger Sub obtaining the consent of the CompanyBLP, Subcorp may (i) shall from time to time extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date Offer if, on any then at the scheduled Expiration Date, any of the Tender conditions of the Offer Conditions is shall not have been satisfied or waived by Parent, for until such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions conditions are satisfied or waived and it is to the extent permitted under by this Agreement; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Commission or the staff of the Commission (the “SEC Staff”) thereof applicable Law to accept the Offer; or (iii) extend the Offer for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days period (as provided in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub for three to 20 business days in order to acquire at least 90% of the Tender Offer Conditions in accordance outstanding shares of BLP Common Stock. Cardinal and Subcorp shall comply with Section 1.1(b)the obligations respecting prompt payment and announcement under the Exchange Act, Parent and, without limiting the generality of the foregoing, Subcorp shall, and Cardinal shall cause Merger Sub Subcorp to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment payment, and pay for for, all shares of BLP Common Stock validly tendered and not properly withdrawn pursuant to the Offer (promptly following the date acceptance of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of BLP Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase payment pursuant to the OfferOffer and this Agreement.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Boron Lepore & Associates Inc), Merger Agreement (Cardinal Health Inc)
The Offer. (a) Within Subject to the terms and conditions of this Agreement, as promptly as practicable (but in no event later than ten business days after the date of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (as such term within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock validly tendered pursuant to the Offer are subject to the satisfaction or waiver of the conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of the Offer shall be at the time that is defined in one minute following 11:59 p.m., New York City time, on the date that is twenty business days (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) after the date the Offer is first commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the Offer, “Business Days”except that, without the consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) after reduce the date hereofnumber of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock in their capacity as such, (v) change the form or terms of consideration payable in the Offer, or (vi) otherwise amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders of Company Common Stock in their capacity as such. Notwithstanding the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, (A) extend the Offer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company), if at the scheduled expiration date of the Offer any of the Offer Conditions (other than the Minimum Tender Condition) shall not have been satisfied or waived, until such time as such conditions shall have been satisfied or waived (irrespective of whether the Minimum Tender Condition has been satisfied) and (B) extend the Offer for the minimum period required by any rule, regulation or interpretation or position of the SEC or the staff thereof or the NASDAQ Capital Market (“Nasdaq”) applicable to the Offer; provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Company Minimum Tender Condition shall cooperate with not have been satisfied, Merger Sub shall, and Parent shall cause Merger Sub to) commence , extend the Offer at the request of the Company for one or more consecutive increments of not more than ten business days each (within or for such longer period as may be agreed by the meaning Company); provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. Notwithstanding anything to the contrary herein, if, as of the scheduled expiration date, all of the Offer Conditions are satisfied or waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of shares of Company Common Stock necessary to permit the Merger to be effected without a meeting of the Company’s stockholders, Merger Sub may provide a “subsequent offering period” in accordance with Rule 14d-2 promulgated 14d-11 under the Exchange Act) an offer . On the terms and subject to purchase the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, all outstanding shares of Company Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub validly tendered and not withdrawn pursuant to the terms Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as promptly as practicable after the expiration of the OfferOffer and, in any event, no more than two business days after the Offer Closing Date. The date on which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is referred to as the “Per Share AmountOffer Closing Date”. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in accordance with Section 8.01. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.01(a) and shall, shall affect any termination rights set forth in Section 8.01.
(b) As promptly as practicable on the date of commencement of the Offer but after affording Offer, Parent and Merger Sub shall (i) file with the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with all any supplements or amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to disseminate the Offer or modify any conditions to the Offer in a manner adverse Documents to the holders of shares of Company Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) . The Company shall not limit the right of promptly furnish to Parent and Merger Sub to extend all information concerning the Expiration Date as Company required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect Exchange Act to Company information derived from the Company SEC Filings that is included or incorporated by reference in, be set forth in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TOOffer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable U.S. Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company and its counsel with (in writing, if written)copies of any written comments, and shall consult with reasonably inform the Company regardingand its counsel of any oral comments, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereofof such comments. The Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall (x) provide the Company and its counsel shall be given a reasonable opportunity to review and comment upon on such Offer Documents or response (including the proposed final version thereof), and (y) give reasonable and good faith consideration to any proposed responses before they are filed with comments made by the SECCompany or its counsel.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(gd) Promptly after the Acceptance DateParent, the Company and Merger Sub shall take all action requested by Parent necessary be entitled to elect deduct and withhold from the consideration otherwise payable pursuant to the Offer, such amounts as Parent, the Company or Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign Tax Law. Amounts so withheld and paid over to the appropriate taxing authority shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such deduction or withholding was made.
(e) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring or having a “controlled company” record date on or after the date of this Agreement and prior to the Offer Closing Date, in each case, effected in compliance with Section 5.01, and the Offer Price as defined so adjusted shall provide to the holders of Company Common Stock the same economic effect as contemplated by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with this Agreement prior to such statusaction.
Appears in 2 contracts
Sources: Merger Agreement (Jazz Pharmaceuticals PLC), Merger Agreement (Celator Pharmaceuticals Inc)
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement shall not have been terminated in Rule 14d-1(g)(3) promulgated under the Exchange Actaccordance with Article IX, “Business Days”) after the date hereof, Merger Sub Parent shall, and Parent or shall cause Merger Offer Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase acquire all outstanding shares of SRH Common Stock of not owned, directly or indirectly, by the Company at the purchase a price of $16.00 72.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of SRH Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”). Parent shall, and shall cause Offer Sub to, accept for payment all shares of SRH Common Stock tendered to Parent or Offer Sub at, or as soon as possible following, the Effective Time; provided, that Parent or Offer Sub shall not be required to make payment for, or mail checks with respect to, tendered shares of SRH Common Stock until the seventh calendar day following the Effective Time, but if the Effective Time occurs after December 17, 1999 in no event earlier than January 10, 2000. The obligation of Parent or Offer Sub to consummate the Offer, Offer and to accept for payment any shares of SRH Common Stock tendered pursuant thereto shall be subject only to the terms and conditions hereof and thereof. The Offer Documents will comply set forth in all material respects with the provisions of all applicable Federal securities Laws. Subject Article VIII to the terms and conditions of this Agreement and to the satisfaction prior or waiver concurrent consummation of the conditions set forth in Annex B hereto Merger (collectively, the “Tender "Offer Conditions”"), which are for the sole benefit of Parent shall cause Merger and Offer Sub to, and Merger may be asserted by Parent or Offer Sub shall, upon the expiration regardless of the Offercircumstances giving rise to any such condition, or waived by Parent or Offer Sub in whole or in part at any time and from time to time prior to acceptance of shares for payment in its sole discretion; provided, that in no event shall Parent or Offer Sub purchase (or accept for payment, and pay for (after giving effect to purchase) any required withholding or stock transfer Tax), all shares of SRH Common Stock validly tendered pursuant to the Offer and if the Merger shall not validly withdrawn on the Acceptance Datehave occurred or concurrently occur. The obligation of Merger Sub to accept for payment Company and to pay for any SRH agree that no shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of SRH Common Stock held by the Company Company, SRH or its any of their respective Subsidiaries shall will be tendered to Parent or Offer Sub pursuant to the Offer.
(b) . Parent on behalf of Merger and Offer Sub expressly reserves the right from time to timewill not, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the CompanySRH, Merger Sub shall not (i) decrease the Per Share Amount or change the form of the consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of SRH Common Stock sought pursuant to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to change the Offer Conditions (provided, that Parent or Investor in its sole discretion may waive any such conditions and, in connection therewith, substitute a manner less restrictive condition) or (iv) make any other change in the terms or conditions of the Offer which is materially adverse to the holders of the shares of SRH Common Stock. Notwithstanding the foregoing, Parent and SRH may, without the consent of the Company or SRH, (vx) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in if at the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial scheduled expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement any of the Offer Conditions shall not have been satisfied or waived, until such time as all conditions are satisfied or waived, (determined using Rules 14d-1(g)(3xi) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of extend the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations any statute, rule, regulation, interpretation or position of the SEC or the NYSE AMEX (“NYSE AMEX”) any Governmental Authority applicable to the Offer, including in connection with an increase in the Per Share Amount, and (iixii) shall extend the Expiration Date if, Offer for any reason on any then scheduled Expiration Date, any one or more occasions for an aggregate of not more than 15 business days beyond the Tender Offer Conditions is not satisfied or waived by Parent, for such periods latest expiration date that would otherwise be permitted under clauses (x) and (xi) of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable this sentence. Subject to the Offer (including in connection with an increase in Conditions and the Per Share Amount)terms and conditions of this Agreement, in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside DateParent shall, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the cause Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to Sub to, accept for payment and pay for all shares of SRH Common Stock validly tendered shares of Common Stock that are and not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur withdrawn pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Dateexpiration of the Offer; provided, accept for that Parent or Offer Sub shall not be required to make payment and pay for all for, or mail checks with respect to, tendered shares of SRH Common Stock validly tendered and not properly withdrawn pursuant to until the Offer (seventh calendar day following the date of acceptance for paymentEffective Time, but if the “Acceptance Date”)Effective Time occurs after December 17, which acceptance may be by oral notice to the Paying Agent1999 in no event earlier than January 10, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer2000.
(gE) Promptly after the Acceptance Date, the Company The following Section 7.15 shall take all action requested by Parent necessary be added to elect to be treated as a “controlled company” as defined by Section 801(a) Article VII of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such statusOriginal Agreement.
Appears in 2 contracts
Sources: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)
The Offer. (a) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and as promptly as practicable after the Company shall cooperate with Merger Sub to) date of this Agreement, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act) an offer to purchase all outstanding shares Act of Common Stock of 1934, as amended, and the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) rules and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission regulations promulgated thereunder (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate ) the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto .
(the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. b) The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject solely to: (i) there being validly tendered in the Offer and not validly withdrawn prior to and at any then scheduled Expiration Time: (A) that number of shares of Company Common Stock (including the shares of Company Common Stock that would result from the exercise of all validly tendered In-the-Money Warrants) which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the shares of Company Common Stock then outstanding (excluding any treasury stock but including any Restricted Shares and the shares of Company Common Stock that would result from the exercise of all In-the-Money Warrants regardless of the exercise price, the vesting schedule or other terms and conditions thereof); and (B) that number of shares of Company Preferred Stock which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the shares of Company Preferred Stock then outstanding (excluding any treasury stock) ((A) and (B) collectively, the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit A (together with the Minimum Condition, the “Offer Conditions”). The Company agrees that no shares of Company Common Stock or Company Preferred Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. Subject to the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Parent or Merger Sub of the Tender other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Time. The Per Share Amount Common Offer Price payable in respect of each share of Company Common Stock, and the Preferred Offer Price payable in respect of each share of Company Preferred Stock, validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, on the terms and subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to conditions set forth in this Agreement and the Offer.
(bc) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions. The Offer Conditions are for the sole benefit of Parent on behalf of and Merger Sub, and Parent and Merger Sub expressly reserves reserve the right from time (in their sole discretion) to time, subject to Section 1.1(c) and Section 1.1(d)waive, in its sole discretionwhole or in part, to waive any Tender Offer Condition, to increase the Per Share Amount Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that without the prior written consent of unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to: (i) decrease reduce the Per Share Amount number of Shares subject to the Offer, (ii) subject to the terms of this Agreement (including Section 6.20, but subject to the satisfaction of clause (c)(iii)(B)(2) in the Offer Conditions), reduce the Offer Price, (iii) change, modify or waive the Minimum Condition, (iv) add to the conditions set forth in Exhibit A or modify or change any Offer Condition in a manner adverse in any material respect to any stockholders of the Company, (v) except as otherwise provided in this Section 1.01, extend or otherwise change the expiration date of the Offer, (vi) change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, or (iiivii) amend otherwise amend, modify or waive satisfaction supplement any of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to terms of the Offer in a manner adverse in any material respect to any stockholders of the Company.
(d) The Offer shall expire at midnight (New York time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement to the holders contrary, and without limiting Parent’s or Merger Sub’s obligations under this Section 1.01(e): (i) if on the then-scheduled Expiration Time, any of shares of Common Stock, (v) make any change in the Offer that would require an extension Conditions shall not be satisfied or, in Merger Sub’s sole discretion, waived: (A) in its sole discretion, Merger Sub may extend the Offer for any additional period or delay periods as it so determines or (B) if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for: (I) up to two (2) additional successive periods, not to exceed ten (10) Business Days each, and (II) a third (3rd) additional successive period not to exceed ten (10) Business Days, if all of the then current Expiration Date; provided, however, that this Offer Conditions other than the condition set out in clause (vc) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions thereof have been satisfied (other than those conditions to waive be satisfied at the Offer Closing or the Expiration Time, as the case may be, but subject to the satisfaction thereof) if the Company reasonably believes that such Tender Offer Conditions, except for condition in clause (c) will be satisfied prior to the Minimum Conditionend of such additional ten (10) or Business Day period (vii) modify or amend any other term of the Offeror, in the case of clauses this clause (viB), for such longer period as the parties hereto reasonably agree); (ii) if the Offer is required to be extended by any rule, regulation, interpretation or position of the SEC applicable to the Offer, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required by such Law, rule, regulation, interpretation or position or (viiiii) in its sole discretion, following the Offer Closing, Merger Sub may extend the Offer for a “subsequent offering period” and one or more extensions thereof, not to exceed ten (10) Business Days, in each instance (or for such longer period to which the Company reasonably agrees), in accordance with Rule 14d-11 of the Exchange Act, and the Offer Documents may, in Merger Sub’s sole discretion, provide for a reservation of right to do so; provided that in no event shall Merger Sub be required to extend the Offer (A) beyond March 29, 2013 (the “Outside Date”) or (B) at any manner adverse time that Parent or Merger Sub is permitted to the holders of shares of Common Stock in their capacities as holders of shares of Common Stockterminate this Agreement pursuant to Article VIII.
(cf) No agreement On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (less any withholding of tax pursuant to Section 3.05) all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Acceptance for payment of Shares pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Nothing contained in this Section 1.01 shall affect any termination rights in Article VIII.
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article VIII. If the Offer is terminated or representation hereby withdrawn by Merger Sub, or this Agreement is made terminated pursuant to Article VIII, prior to the acceptance for payment of the Company Common Stock tendered in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof.
(h) As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements thereto, the “Offer Documents”). The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents or shall be made reasonably requested by Parent or Merger Sub in connection with respect its obligations relating to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to the stockholders of the Company, in each case as and to the extent required by the Exchange Act. Parent and Merger Sub, on the one hand, and the Company each agrees Company, on the other hand, agree to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Sub shall further agree to take all steps necessary to cause the Schedule TOOffer Documents, as so corrected or supplemented(if applicable), to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the stockholders of the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment on any such Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. response, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECsuch comments.
(di) The initial expiration date of Subject in all respects to the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) other terms and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination conditions of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub Sub, on a timely basis basis, the funds necessary to purchase pay for any shares of Common Stock Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Bishop Infrastructure III Acquisition Company, Inc.), Merger Agreement (Westway Group, Inc.)
The Offer. (a) Within ten business days (Provided that this Agreement shall not have been terminated in accordance with Section 7.01, as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) promptly as practicable after the date hereof, but in no event later than ten (10) Business Days following the date of this Agreement, Merger Sub shall, shall (and Parent shall cause Merger Sub to) commence, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer to purchase all of the outstanding shares of Company Common Stock (the “Offer Documents”), and shall consummate the Offer, subject other than Excluded Shares) at a price per share equal to the terms and conditions hereof and thereofOffer Price. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration consummation of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Company Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, shall be subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not only to: (i) decrease the Per Share Amount or change the form of consideration payable there being validly tendered in the Offer (other than by adding consideration)and not properly withdrawn prior to the Expiration Date that number of shares of Company Common Stock which, (ii) decrease together with the number of shares of Company Common Stock to be purchased in the Offer, (iiiif any) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received owned by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given other Subsidiaries, represents a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date majority of the Offer shall be at midnight, New York City time, total number of outstanding shares of Company Common Stock entitled to vote on the 20th Business Day following the commencement of the Offer matter (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementcollectively, the “Expiration DateMinimum Condition”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of ; (ii) this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is not having been terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining its terms (the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEXTermination Condition”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, ; and (iii) may extend the Expiration Date beyond satisfaction, or waiver by Parent or Merger Sub, of the Outside Date for up to a period not to exceed other conditions and requirements set forth in Annex I (together with the 13th Business Day after Minimum Condition and the last to occur Termination Condition, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, any date on which (w) the shares of Company shall have publicly announced the receipt of an Acquisition Proposal Common Stock tendered in the event such announcement is made less than ten Business Days prior Offer pursuant to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) guaranteed delivery procedures shall be included only if such advisement is received by Parent less than ten Business Days prior shares have actually been delivered pursuant to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENsuch procedures.
(eb) In Subject to the event satisfaction of the Acceptance Date occurs but Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Merger Sub does not acquire a sufficient number Sub, of shares the other Offer Conditions, in each case, as of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereofthe Expiration Date, Merger Sub may shall (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), and Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer on or promptly (within the meaning of Section 14e-1(c) under the Exchange Act) after the applicable Expiration Date. Subject to Section 2.10(h), the Offer Price payable in respect of each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest.
(c) The Offer shall be made by means of an offer to purchase (the date “Offer to Purchase”) that describes the terms and conditions of acceptance for paymentthe Offer in accordance with this Agreement, including the “Acceptance Date”), which acceptance may be by oral notice Offer Conditions. Merger Sub expressly reserves the right to make any change in the terms of or conditions to the Paying AgentOffer; provided, however, that unless previously approved by the Company in writing, Parent and Merger Sub shall not: (i) decrease the Offer Price other than pursuant to Section 2.09(e), (ii) change the form of consideration payable in the Offer, (iii) change the number of shares of Company Common Stock to be purchased in the Offer, (iv) waive the Minimum Condition, the Termination Condition or the other Offer Conditions set forth in clause (b) or clause (c)(1) of Annex I, (v) add any condition to the Offer, (vi) extend the expiration of the Offer except as required or permitted by this Section 2.01, (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act, (viii) amend or modify any of the Offer Conditions or (ix) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Company Common Stock.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 11:59 p.m. (New York City time) on the Acceptance date that is twenty (20) Business Days following the commencement of the Offer, as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Date, deposit or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) Unless this Agreement has been terminated in accordance with its terms, if as of any then scheduled Expiration Date, (i) any Offer Condition (other than the Minimum Condition) has not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten (10) Business Days each (or such longer period of up to twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension), the length of each such period to be deposited with determined by Parent in its reasonable discretion in order to permit the Paying Agentsatisfaction of any such Offer Conditions; provided, cash however, that (x) in U.S. dollars sufficient no event shall Parent or Merger Sub extend the Offer for a period that expires more than three (3) Business Days following the end of the Marketing Period without the Company’s prior written consent and (y) Merger Sub shall be required to pay extend the aggregate Per Share Amount Offer pursuant to this clause (i) only if in the reasonable discretion of Parent any such Offer Condition is capable of being satisfied on or prior to the End Date, (ii) all of the Offer Conditions (other than the Minimum Condition) have been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for all an extension period of ten (10) Business Days (or such accepted shares longer period of Common Stock up to twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension), in order to permit the satisfaction of the Minimum Condition; provided, however, that (x) in no event shall Parent or Merger Sub extend the Offer for a period that expires more than three (3) Business Days following the end of the Marketing Period without the Company’s prior written consent and (y) Merger Sub shall not be required to extend the Offer pursuant to this clause (ii) on more than two (2) occasions, but may, in its sole and absolute discretion, elect to do so, and (iii) as soon as practicable Merger Sub shall extend the Offer for the minimum period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or the NASDAQ Global Market; provided, however, that in no event shall Merger Sub (x) be required to extend the Offer beyond the End Date, unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 7.01(b)(i), or (y) extend the Offer beyond the End Date or more than three (3) Business Days following such depositthe end of the Marketing Period without the Company’s prior written consent. Notwithstanding the foregoing, nothing in this Section 2.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Parties to terminate this Agreement pursuant to Section 7.01.
(f) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Section 7.01. If this Agreement is terminated pursuant to Section 7.01, Merger Sub shall (and Parent shall cause Merger Sub to) promptly terminate the Paying Agent to pay for all Offer and shall not acquire the shares of Company Common Stock so accepted for paymentpursuant thereto. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, Merger Sub shall (and Parent shall provide or cause to be provided to Merger Sub to) promptly return, and shall cause any depositary acting on a timely basis the funds necessary behalf of Merger Sub to purchase any return, in accordance with applicable Law, all tendered shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant have not then been purchased in the Offer to the Offerregistered holders thereof.
(g) Promptly after As soon as practicable on the Acceptance Datedate of the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer, Parent and Merger Sub shall:
(i) file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”);
(ii) deliver a copy of the Schedule TO, including all exhibits thereto, to the Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
(iii) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail or other acceptable means a copy of the Schedule TO, to the NASDAQ Global Market in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
(iv) cause the Offer Documents to be disseminated to all holders of shares of Company Common Stock as and to the extent required by all applicable Laws, including the Exchange Act; and
(v) cause the notice referred to in Section 3-106.1(e)(1) of the MGCL (the “Maryland Short Form Merger Notice”) to be disseminated to all holders of shares of Company Common Stock with the Offer Documents.
(h) The Schedule TO shall include as exhibits the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, and a form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, being referred to herein as the “Offer Documents”) and the Maryland Short Form Merger Notice. Parent and Merger Sub shall cause the Schedule TO and the Offer Documents to comply as to form in all material respects with the requirements of applicable Law. Subject to Section 5.02, the Company consents to the inclusion of a description of the Company Recommendation in the Schedule TO and the Offer Documents. The Company shall take furnish in writing to Parent and Merger Sub all action information concerning the Company and its Subsidiaries that is required by applicable Laws or reasonably requested by Parent necessary to elect or Merger Sub to be treated included in the Schedule TO or the Offer Documents so as to enable Parent and Merger Sub to comply with their obligations under this Section 2.01(h). Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it or any of its respective Representatives for use in the Offer Documents, if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law, and Parent and Merger Sub agree to cause the Offer Documents, as so corrected, to be filed with the SEC and disseminated to holders of shares of Company Common Stock, in each case as and to the extent required by all applicable Laws, including the Exchange Act. The Company and its (and the Special Committee’s) legal counsel shall be given a “controlled company” reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and Merger Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its (and the Special Committee’s) legal counsel (it being understood that the Company and its (and the Special Committee’s) legal counsel shall provide any comments thereon as defined soon as reasonably practicable). In addition, Parent and Merger Sub shall provide the Company and its (and the Special Committee’s) legal counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, Merger Sub or their legal counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly (and in any event within 48 hours) after receipt of such comments, and any written or oral responses thereto. The Company and its (and the Special Committee’s) legal counsel shall be given a reasonable opportunity to review any proposed written or oral responses to the Schedule TO and Offer Documents and Parent and Merger Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by Section 801(athe Company and its (and the Special Committee’s) legal counsel and, to the extent practicable, to participate in any substantive telephonic communications with the staff of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such statusSEC related thereto.
Appears in 2 contracts
Sources: Merger Agreement (Telecommunication Systems Inc /Fa/), Merger Agreement (Comtech Telecommunications Corp /De/)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof and so long as none of the events set forth on Annex B hereto (the "Tender Offer Conditions") shall have occurred and are continuing, as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) promptly as practicable after the date hereofof this Agreement (but in any event no later than ten (10) Business Days after the execution and delivery of this Agreement), Merger Sub shall, and Parent Acquisition shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub Acquisition to accept for payment and to pay for any shares of Common Stock validly Shares tendered shall be subject solely only to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions, any of which may be waived by Buyer or Acquisition in whole or in part in their sole discretion; provided, however, that Acquisition shall not waive the Minimum Condition without the prior consent of the Company. The Per Share Amount shall Tender Offer Conditions are for the sole benefit of Buyer and Acquisition and may be net asserted by Buyer and Acquisition regardless of the circumstances giving rise to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the OfferTender Offer Conditions.
(b) Parent on behalf of Merger Sub Buyer and Acquisition expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer; provided, however, that Acquisition shall not, without the prior written consent of the Company, Merger Sub shall not (i) decrease reduce the Per Share Amount or number of Shares to be purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) impose any additional conditions to the Offer, (iv) change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in to the terms of the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), is materially adverse in any manner adverse to the holders of shares of Common Stock the Shares, or (vi) extend the Offer except as set forth in their capacities as holders of shares of Common StockSection 2.1(d).
(c) No agreement Assuming prior satisfaction or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by waiver of the Company expressly for inclusion inTender Offer Conditions, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TOAcquisition shall, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, soon as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly legally permissible after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such dateOffer, or such subsequent date to which the expiration of the Offer is extended pursuant to and accept for payment, in accordance with the terms of this Agreementthe Offer, the “Expiration Date”). Merger Sub Shares which have been validly tendered and not withdrawn at or prior to the expiration of the Offer.
(d) Acquisition shall not terminate or withdraw extend the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, for one ten (10) Business Day period if (i) shall extend the Expiration Date for any period required by the rules Minimum Condition is not satisfied and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such all other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied at the expiration of the initial twenty (20) Business Day Offer period, and thereafter, if, on any date on which the Offer is scheduled to expire, any Tender Offer Conditions have not been satisfied or waived, Acquisition may, without the consent of the Company and in its sole discretion, extend the Offer from time to time for successive extension periods for up to ten (10) Business Days on each occasion beyond the then scheduled expiration date, as Acquisition reasonably determines is necessary to permit such Tender Offer Condition to be satisfied, until the earlier to occur of (A) the Termination Date, or (B) the date such conditions are satisfied or earlier waived and it is permitted under applicable Law Acquisition becomes obligated to accept for payment and pay for validly Shares tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub the Offer. Buyer and Acquisition may (in its sole discretion), until amend the Outside Date, provide Schedule TO to permit the announcement of a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days period (as such term is defined in accordance with Rule 14d-11 14d-1 promulgated under the Exchange Act.
Act (fthe "Subsequent Offer Period")) Promptly upon to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub toOffer, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant Acquisition may include a Subsequent Offer Period to the Offer for up to a maximum of twenty (the date of acceptance for payment, the “Acceptance Date”20), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (T Netix Inc), Merger Agreement (T Netix Inc)
The Offer. (a) Within ten business days (Provided that this Agreement shall not have been terminated in accordance with Article VII, as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) promptly as practicable after the date hereof (and in any event within fifteen (15) Business Days of the date hereof), Merger Sub shall, shall (and Parent shall cause Merger Sub to) commence, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer to purchase (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereofOffer Conditions, including the Minimum Condition) all the outstanding Common Stock (other than the Shares cancelled or converted pursuant to Section 2.1(a)) at a price per share equal to the Offer Price. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration consummation of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, shall be subject solely only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Common Stock (if any) then owned by Parent or its Subsidiaries, represents at least a majority of the shares of Common Stock then outstanding (collectively, the “Minimum Condition”); (ii) this Agreement not having been terminated in accordance with its terms (the “Termination Condition”); and (iii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”).
(b) Subject to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) (i) promptly (and in any event no later than one (1) Business Day) after the Expiration Date accept for payment and purchase all shares of Common Stock validly tendered (and not properly withdrawn) pursuant to the Tender Offer Conditions(the time of such acceptance, the “Acceptance Time”) and (ii) promptly (and in any event no later than one (1) Business Day) after the applicable Expiration Date cause the Paying Agent to pay for such shares of Common Stock. The Per Share Amount Subject to Section 2.9, the Offer Price payable in respect of each share of Common Stock validly tendered (and not properly withdrawn) pursuant to the Offer shall be paid net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(bc) Parent on behalf The Offer shall be made by means of Merger Sub expressly reserves an offer to purchase (the right from time “Offer to time, subject to Section 1.1(cPurchase”) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in that describes the terms and conditions of the Offer; providedOffer in accordance with this Agreement, that without including the prior written consent of Offer Conditions. Unless previously approved by the CompanyCompany in writing, Parent and Merger Sub shall not not: (i) decrease the Per Share Amount or Offer Price, (ii) change the form of consideration payable in the Offer (other than by adding consideration)Offer, (iiiii) decrease change the number of shares of Common Stock to be purchased in the Offer, (iiiiv) amend or waive satisfaction of the Minimum Condition, the Termination Condition or the conditions set forth in clauses (as defined in b) or (c)(i) of Annex B)I, (ivv) impose additional conditions add any condition to the Offer or modify any conditions term that is adverse to the holders of Common Stock, (vi) extend the expiration of the Offer except as required or permitted by this Section 1.1, (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of shares of Common Stock. Parent and Merger Sub expressly reserve the right (but shall not be obligated) at any time and from time to time, in their sole discretion, to (vA) increase the Offer Price, and (B) waive (to the extent permitted by applicable Law) any Offer Condition and make any change other changes in the Offer that would require an extension or delay terms and conditions of the then current Offer, in each case, that are not inconsistent with the terms of this Agreement (including the limitations set forth in the preceding sentence).
(d) Unless extended or terminated in accordance with the terms of this Agreement, the Offer shall expire at one minute after 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer, as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If as of any then scheduled Expiration Date, any Offer Condition has not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension) in order to permit the satisfaction of the Offer Conditions; provided, however, that this clause (v) Merger Sub shall not limit be required to extend the right Offer beyond August 31, 2019 (such date, the “Outside Date”), and shall not extend the Offer beyond the Outside Date without the Company’s consent. Notwithstanding the foregoing, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or NASDAQ; provided, however, that Merger Sub shall not be required to extend the Offer beyond the Outside Date, and shall not extend the Offer beyond the Outside Date without the Company’s consent.
(f) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VII. If this Agreement is terminated pursuant to Article VII, Merger Sub shall (and Parent shall cause Merger Sub to) promptly terminate the Offer and shall not acquire the shares of Common Stock pursuant thereto. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to promptly return, in accordance with applicable Law, all tendered shares of Common Stock to the registered holders thereof.
(g) As promptly as practicable on the date of the commencement, within the meaning of Rule 14d-2 under the Exchange Act, of the Offer, Parent and Merger Sub to extend shall:
(i) file with the Expiration Date as required or permitted by Section 1.1(d)SEC, (vi) modify or amend in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Conditions Statement on Schedule TO with respect to the Offer (other than to waive such Tender Offer Conditionstogether with all amendments, except for supplements and exhibits thereto, the Minimum Condition“Schedule TO”);
(ii) or (viicause a notice that satisfies the requirements of Section 3-106.1(e)(1) modify or amend any other term of the Offer, in MGCL (the case of clauses (vi“Maryland Short Form Notice”) and (vii), in any manner adverse to the be given to all holders of shares of Common Stock in their capacities as with the Offer Documents, unless, prior to the date the Offer is first commenced, the Maryland Short Form Notice has been given to all holders of shares of Common StockStock who, except for the application of Section 3-106.1 of the MGCL, would be entitled to vote on the Merger on the date such notice is given;
(iii) deliver a copy of the Schedule TO, including all exhibits thereto, to the Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
(iv) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and, unless waived by NASDAQ or the NASDAQ Listing Rules, mail by means of first class mail a copy of the Schedule TO, to NASDAQ in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and
(v) cause the Offer Documents to be disseminated to all holders of shares of Common Stock as and to the extent required by all applicable Laws, including the Exchange Act.
(ch) No agreement or representation hereby is made or The Schedule TO shall include as exhibits, the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, and a form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made by Parent made, together with any amendments and supplements thereto, being referred to herein as the “Offer Documents”). The Offer Documents shall include the Maryland Short Form Notice (whether as an exhibit or Merger Sub with respect to information supplied by otherwise) as provided in clause (g)(ii) above and may include a description of the determinations, approvals and recommendations of the Company expressly for inclusion in, or with respect to Company information derived from Board and the Company SEC Filings that is included or incorporated by reference indescribed in this Agreement (and a change to such determinations, approvals and recommendations to the extent applicable at the relevant time). Subject to the provisions of Section 5.2, the Company consents to the inclusion of a description of the Company Recommendation in the Schedule TO and the Offer Documents. ParentParent and Merger Sub, Merger Sub on the one hand, and the Company each agrees Company, on the other hand, agree to use reasonable best efforts to (i) respond promptly to any comments of the SEC or its staff with respect to the Offer Documents and (ii) cause the Offer Documents when filed to comply with applicable Law and promptly correct any information provided by it for use in the Offer Documents Documents, if and to the extent that it any of them become aware that such information shall have become false or misleading in any material respect. respect or as otherwise required by applicable Law, and Parent and Merger Sub shall agree to cause the Schedule TOOffer Documents, as so corrected or supplementedcorrected, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of shares of Common Stock, in each case as and to the extent required by all applicable Federal securities Laws, including the Exchange Act. The Company shall promptly furnish to Parent all information concerning the Company, its stockholders and the Company Subsidiaries that may be reasonably requested in connection with this Section 1.1(h). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and Merger Sub shall give reasonable consideration to any such comments made by the Company and its counsel. In addition, Parent and Merger Sub shall provide the Company and its counsel promptly with copies of any written comments, and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review and comment on any proposed written or oral responses to the SEC or its staff in respect of the Schedule TO and Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. and Parent and Merger Sub shall give reasonable and good faith consideration to any such comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with give the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon participate in any proposed responses before they are filed substantive telephonic communications with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations staff of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable related thereto, to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions extent such participation is not satisfied or waived prohibited by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENLaw.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/), Merger Agreement (Keyw Holding Corp)
The Offer. (a) Within ten business days (Subject to the provisions of this Merger Agreement, as such term is defined promptly as practicable, but in Rule 14d-1(g)(3) promulgated under the Exchange Actno event later than February 23, “Business Days”) after the date hereof1998, Merger Sub shall, and Parent Purchaser shall cause Merger Sub to, (and commence the Company shall cooperate with Merger Offer. The obligation of Sub to) , and of Purchaser to cause Sub to, commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Offer and accept for payment, and pay for, any Company Common Stock of the Shares and Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub Preferred Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (any of which, including the Minimum Condition (as defined in Exhibit A) may be waived by Sub in its sole discretion) and to the terms and conditions of this Merger Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the “Per consent of the Company, Sub shall not (i) reduce the number of Company Common Shares and Company Preferred Shares to be purchased in the Offer; (ii) reduce the Common Share Amount”Offer Price or the Preferred Share Offer Price, except as otherwise provided in this Merger Agreement; (iii) modify or add to the conditions set forth in Exhibit A in any manner that the Board of Trustees of the Company, in the exercise of its fiduciary obligations, determines to be adverse to the holders of Company Common Shares or Company Preferred Shares; (iv) except as provided in the next sentence, extend the Offer; (v) change the form of consideration payable in the Offer; or (vi) amend any other term of the Offer in a manner that the Board of Trustees of the Company, in the exercise of its fiduciary obligations, determines to be adverse to the holders of Company Common Shares and shallCompany Preferred Shares. Notwithstanding the foregoing, on Sub may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date of (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to exceed 20 business days, if at the scheduled expiration date of the Offer but after affording any of the conditions to Sub's obligation to accept for payment, and pay for, Company Common Shares and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to Company Preferred Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived; or (ii) extend the Offer for any comments made therebyperiod required by any rule, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements theretoregulation, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with interpretation or position of the Securities and Exchange Commission (the “"SEC”") and cause such documents or the staff thereof applicable to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of the Offer and this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”)Merger Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offerand Purchaser shall cause Sub to, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax)for, all shares of Company Common Stock Shares and Company Preferred Shares validly tendered and not withdrawn pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger that Sub becomes obligated to accept for payment payment, and to pay for any shares of Common Stock validly tendered shall be subject solely for, pursuant to the satisfaction or waiver by Merger Sub Offer as soon as practicable after the expiration of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf On the date of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term commencement of the Offer, Purchaser and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Purchaser and Sub agree that the Offer Documents shall comply as to form in all material respects with the case Securities Exchange Act of clauses 1934, as amended, and the rules and regulations promulgated thereunder (vi) and (viithe "Exchange Act"), in any manner adverse and the Offer Documents on the date first published, sent or given to the holders Company's shareholders, shall not contain any untrue statement of shares a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or the circumstances under which they were made, not misleading, except that no representation hereby is made by Purchaser or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly specifically for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, in the Offer Documents. ParentEach of Purchaser, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Parent , and Merger each of Purchaser and Sub shall further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected amended or supplemented, supplemented to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders's shareholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereoflaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed the Offer Documents and all amendments and supplements thereto prior to their filing with the SECSEC or dissemination to shareholders of the Company. Purchaser and Sub agree to provide the Company and its counsel any comments Purchaser, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date Subject to which the expiration of the Offer is extended pursuant to and in accordance with the terms and conditions of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent Purchaser shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock Shares and Company Preferred Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Eastgroup Properties Inc), Merger Agreement (Eastgroup Properties Inc)
The Offer. (a) Within ten Subject to the provisions of this ---------- Agreement, as promptly as practicable, but in no event later than five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms public announcement of the Offer, Acquisition Sub shall commence the “Per Share Amount”) and shall, on the date Offer. The obligation of commencement of Acquisition Sub to commence the Offer but after affording the Company and its counsel reasonable opportunity to review accept for payment, and comment thereon and giving reasonable and good faith consideration to pay for, any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Company Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with Stock or Preference Stock tendered pursuant to the Offer (the “Offer Documents”), and shall consummate the Offer, be subject to the terms conditions set forth in Exhibit A (any of which may be waived in whole or in part by Acquisition Sub in its sole discretion) and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance DateAgreement. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Acquisition Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer; provided, that except that, without the prior written consent of the Company, Merger Acquisition Sub shall not (i) decrease reduce the Per Share Amount number of shares of Company Common Stock or Preference Stock to be purchased in the Offer, (ii) reduce the Common Stock Offer Price or the Preference Stock Offer Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iiivi) amend or waive satisfaction any other term of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse in any material respect to the holders of shares Company Common Stock or Preference Stock. Notwithstanding the foregoing, Acquisition Sub may, without the consent of Common Stockthe Company, (vi) make any change in extend the Offer that would require an extension or delay beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the then current Expiration Date; providedOffer) for a period not to exceed 20 business days, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend if at any other term scheduled expiration date of the Offer, in any of the case conditions to Acquisition Sub's obligation to accept for payment, and pay for, shares of clauses Company Common Stock or Preference Stock shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (viii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (vii)iii) terminate the Offer without prejudice to any of its and Parent's rights under this Agreement, including to proceed with the Merger in any manner adverse accordance with, and subject to the holders terms and conditions of, this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Acquisition Sub shall accept for payment, and pay for, all shares of Company Common Stock in their capacities and Preference Stock validly tendered and not withdrawn pursuant to the Offer that Acquisition Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as holders soon as practicable after expiration of shares of Common Stockthe Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act (as defined below).
(cb) No agreement On the date of commencement of the Offer, Parent and Acquisition Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent and Acquisition Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act") and, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation hereby is made or shall be made by Parent or Merger Acquisition Sub with respect to information supplied regarding the Company or its subsidiaries or provided by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated incorporation by reference in, in the Offer Documents. Each of Parent, Merger Acquisition Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Acquisition Sub shall further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected amended or supplemented, supplemented to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s 's stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereoflaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed the Offer Documents and all amendments and supplements thereto prior to their filing with the SECSEC or dissemination to stockholders of the Company. Parent and Acquisition Sub agree to provide the Company and its counsel any comments or requests for additional information Parent, Acquisition Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel an opportunity to participate, including by way of discussion with the SEC or its staff, in the response of Parent and/or Acquisition Sub to such comments.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Acquisition Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock and Preference Stock that Merger Acquisition Sub accepts for payment, and becomes obligated to purchase pay for, pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Bird Corp), Merger Agreement (Bi Expansion Ii Corp)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, as promptly as practicable after the date hereof (as such term is defined but in no event later than the seventh (7th) Business Day after the date hereof), Merger Sub shall commence (within the meaning of Rule 14d-1(g)(3) promulgated 14d-2 under the Exchange Act), and Parent shall cause Merger Sub to commence, the Offer to purchase all of the issued and outstanding Shares at a price per Share in cash equal to $31.00 net to the seller, without interest and less any taxes required to be withheld as described in Section 3.5 (such amount to be paid for each Share, as it may be amended from time to time in accordance with the terms hereof, the “Business DaysOffer Price”). The Company agrees that no Shares owned by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(b) The obligations of Merger Sub, and of Parent to cause Merger Sub, to accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer on or prior to the Expiration Date (the “Tendered Shares”) shall be subject only to (i) the satisfaction of the Minimum Condition and (ii) the satisfaction or waiver by Merger Sub of the other conditions set forth in Annex I hereto (such conditions, together with the Minimum Condition, the “Offer Conditions”) and the terms and conditions hereof. The Offer Conditions are for the sole benefit of Parent and Merger Sub. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or to modify the terms or conditions of the Offer, except that, without the prior written consent of the Company, neither Parent nor Merger Sub shall (i) reduce the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the number of Shares to be purchased by Merger Sub in the Offer, (iv) waive or amend the Minimum Condition, (v) add to the Offer Conditions or impose any other conditions to the Offer, (vi) extend the expiration of the Offer except as required or permitted in Section 1.1 of this Agreement, (vii) otherwise amend, modify or supplement any Offer Condition or any term of the Offer set forth in this Agreement, in each case in a manner adverse to the holders of Shares or (viii) abandon or terminate the Offer, except as expressly provided in this Agreement.
(c) Subject to the terms and conditions of this Agreement and the Offer, the initial expiration date for the Offer shall be midnight, New York City time, the twentieth (20th) Business Day from and after the date the Offer is commenced, as determined in accordance with Rule 14d-1(g)(3) of the Exchange Act (such initial expiration date as it may be extended in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall, and Parent shall cause it to, 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 or the NASDAQ Stock Market (“NASDAQ”) that is applicable to the Offer. Merger Sub may without the consent of the Company (in each case unless this Agreement has been terminated pursuant to Article VIII), (i) extend the Offer for one or more consecutive increments of not more than ten (10) Business Days each, if at the then-scheduled Expiration Date any Offer Condition has not been satisfied or waived (the length of such period to be determined by Parent and Merger Sub) and/or (ii) make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. If at any then-scheduled Expiration Date any Offer Condition has not been satisfied or waived, Merger Sub shall, and Parent shall cause it to (in each case unless this Agreement has been terminated pursuant to Article VIII), extend the Offer at the request of the Company for one or more consecutive increments of not more than ten (10) Business Days each (the length of such period to be determined by Parent and Merger Sub) until the earlier to occur of (A) the termination of this Agreement pursuant to Article VIII and (B) the Outside Date. In addition, Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of not less than five (5) Business Days; provided that Merger Sub shall not be required to make available such a “subsequent offering period” in the event that, prior to the commencement of such “subsequent offering period,” Parent and Merger Sub, directly or indirectly own at least ninety percent (90%) of the outstanding Shares (after taking into account the exercise of the Top-Up Option, if applicable); provided further that if Parent and Merger Sub, do not directly or indirectly own at least ninety percent (90%) of the outstanding Shares (after taking into account the exercise of the Top-Up Option, if applicable) at the end of the initial “subsequent offering period,” Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, extend the “subsequent offering period” for not less than an additional five (5) Business Days. Nothing in this Section 1.1(c) shall (i) impose any obligation on Merger Sub to extend the Offer beyond the Outside Date, or (ii) be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Article VIII.
(d) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Annex I hereto. Merger Sub shall, and Parent shall cause Merger Sub to, on the terms set forth in this Agreement and subject to the prior satisfaction or waiver of the conditions of the Offer (provided, however, that the Minimum Condition may not be waived without the written consent of the Company), accept for payment and pay for all Tendered Shares as soon as practicable after the Expiration Date. If Merger Sub makes available a “subsequent offering period” in accordance with Section 1.1(c) hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (to accept for payment and the Company shall cooperate with Merger Sub to) commence pay for all Shares that are validly tendered during such “subsequent offering period” promptly (within the meaning of Rule 14d-2 promulgated 14d-11 under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock after any Shares are validly tendered during such “subsequent offering period.”
(such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”e) and shall, on On the date of commencement of the Offer but after affording Offer, Parent and Merger Sub shall file with the Company SEC in accordance with Rule 14d-3 and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file Regulation M-A under the Exchange Act a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain the Offer to Purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with all any supplements or amendments thereto and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate cause the Offer, subject Offer Documents to be disseminated to the terms Stockholders as and conditions hereof to the extent required by United States federal securities Laws and thereofthe rules and regulations of the SEC promulgated thereunder (the “Federal Securities Laws”). The Parent and Merger Sub shall cause the Offer Documents will to comply in all material respects with the provisions of all applicable Federal securities Securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term shall deliver copies of the Offer, in proposed forms of the case of clauses Offer Documents (viincluding any amendments or supplements thereto) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement Company within a reasonable time prior to the dissemination or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied filing thereof for review and comment by the Company expressly for inclusion inand its counsel, or with respect to Company information derived from and shall consider in good faith any comments of the Company SEC Filings that is included or incorporated by reference in, the Offer DocumentsCompany. Each of Parent, Merger Sub and the Company each agrees shall respond promptly to any comments of the SEC or its staff with respect to the Offer or the Offer Documents and promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respectrespect or as otherwise required by the Federal Securities Laws. Parent and Merger Sub shall amend or supplement the Offer Documents and cause the Schedule TOOffer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable the Federal securities Laws. The Company Securities Laws and its counsel shall be given a reasonable opportunity subject to review the terms and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documentsconditions of this Agreement. Parent and Merger Sub shall provide the Company and its counsel with (in writing, if written)copies of any written comments, and shall consult with the Company regardinginform them of any oral comments, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The of such comments and shall give the Company and its counsel shall be given a reasonable opportunity under the circumstances to review and comment upon on any proposed written or oral responses before they are filed with to such comments. The Company hereby consents to the SEC.
(d) The initial expiration date inclusion in the Offer Documents of the Offer shall Company Board Recommendation as it may be at midnightamended or modified, New York City timeand until but not after it is withdrawn, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of each case as permitted by this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company and shall take cause Merger Sub to perform, on a timely basis, all action requested by Parent necessary of Merger Sub’s obligations under this Agreement with respect to elect to be treated as a “controlled company” as defined by Section 801(a) consummation of the NYSE AMEX Company Guide Offer and make any necessary filings the Merger and disclosures associated with such statuspayment or issuance of consideration contemplated by this Agreement in respect thereof.
Appears in 2 contracts
Sources: Merger Agreement (Amylin Pharmaceuticals Inc), Merger Agreement (Bristol Myers Squibb Co)
The Offer. (a) Within Provided that this Agreement shall not have been terminated in accordance with SECTION 8.1 hereof and that none of the events set forth on ANNEX 1 hereto shall have occurred or be existing, as promptly as practicable, but in no event later than within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after of the date hereofof this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation obligations of Merger Sub to accept for payment and to pay for any shares of Company Common Stock validly tendered shall be subject solely only to the satisfaction or waiver by Merger Sub of conditions set forth in ANNEX 1 hereto (the "Tender Offer Conditions"). The Per Share Amount shall be net to Tender Offer Conditions are for the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares sole benefit of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of and Merger Sub expressly reserves and may be asserted by Parent and Merger Sub regardless of the right from time circumstances giving rise to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any such Tender Offer Condition, to increase Conditions or may be waived by Parent and Merger Sub in whole or in part; provided that the Per Share Amount or to make any other changes Minimum Condition (as defined in the terms and conditions of the Offer; provided, that ANNEX 1) may not be waived without the prior written consent of the Company. Without the prior written consent of the Company, provided that this Agreement shall not have been terminated in accordance with SECTION 8.1, Merger Sub shall not (i) decrease the Per Share Amount or Offer Price, decrease the number of shares of Company Common Stock being sought in the Offer, change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose add additional conditions to the Offer Offer, or modify make any other change in the terms or conditions to of the Offer in a manner which is adverse to the holders of shares of Company Common Stock, it being agreed that neither a waiver by Merger Sub of any Tender Offer Condition (vother than the Minimum Condition) make in whole or in part at any change time and from time to time in its discretion, nor the extension of the Offer that would require as permitted below, shall be deemed to be adverse to any holder of shares of Company Common Stock. The Offer shall be made by means of an extension offer to purchase and related letter of transmittal (the "Letter of Transmittal") (collectively, the "Offer to Purchase"). Merger Sub expressly reserves the right to increase the Offer Price or delay to extend the Offer as provided below. Upon the terms and subject to the conditions of the then current Offer, Merger Sub shall purchase the shares of Company Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. The Offer shall expire at 12:00 midnight eastern time on the 20th business day following commencement of the Offer (such date and time, as extended in accordance with the terms hereof, the "Expiration Date"); PROVIDED, HOWEVER, that Merger Sub may, from time to time, extend the Expiration Date (i) for the minimum period of time necessary to comply with any provision of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"), but in no event later than the 40th business day following the initial Expiration Date; provided(ii) if any of the Tender Offer Conditions have not been satisfied, howeverfor the minimum period of time necessary to satisfy such condition but in no event later than the 20th business day following the initial Expiration Date (subject, that this with respect to the Minimum Condition, to the provisions of clause (viii) hereof); (iii) if all of the Tender Offer Conditions have been satisfied but fewer than 90% of the issued and outstanding shares of Company Common Stock have been tendered in the Offer, for the minimum period of time necessary until 90% of the issued and outstanding shares of Company Common Stock have been so tendered, but in no event later than the fifth business day following the initial Expiration Date, which five business day period may be extended for three additional five business day periods; and (iv) if a Takeover Proposal (as defined in Section 6.10) shall not limit be publicly disclosed or Parent or Merger Sub shall have otherwise learned that a Takeover Proposal shall have been made or publicly proposed to be made by any person (including the right Company or any of its subsidiaries or affiliates) other than Parent, Merger Sub or any subsidiary or affiliate of either of them, and less than all of the Tender Offer Conditions have been satisfied, until ten days after the termination or publicly-announced abandonment of such Takeover Proposal, but in no event later than the earlier of (A) June 30, 2000 and (B) the minimum time period necessary to satisfy all such conditions.
(b) On the date the Offer is commenced, Parent and Merger Sub shall file with the Securities and Exchange Commission (the "SEC") a tender offer statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to extend the Offer. The Schedule TO shall contain (included as an exhibit) or shall incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related Letter of Transmittal and summary advertisement, as well as all other information and exhibits required by law. Each of the parties hereto shall furnish all information concerning itself which is required or customary for inclusion in the Schedule TO. The information provided by any party hereto for use in the Schedule TO shall be true and correct in all material respects without misstatement of any material fact or omission of any material fact which is necessary or required to make the statements therein, in light of the circumstances under which they were made, not false or misleading and, in the event any party becomes aware prior to the Expiration Date as of any information that should be included in the Schedule TO such that the Schedule TO shall not contain any misstatement of any material fact or omission of any material fact which is necessary or required or permitted by Section 1.1(d)to make the statements therein, (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term in light of the Offercircumstances under which they were made, in not false or misleading, such party shall promptly notify the case of clauses (vi) and (vii)other parties thereof and, in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) extent required by applicable law, an appropriate amendment to the Schedule TO shall be promptly prepared, filed with the SEC and disseminated to stockholders. No representation, covenant or agreement or representation hereby is made or shall be made by Parent or Merger Sub any party hereto with respect to information supplied by the Company expressly any other party for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are the Schedule TO prior to its being filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration agree to any comments or other additions, deletions or changes made by provide the Company and its counsel with respect to any Offer Documents. written comments Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENcomments.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Oea Inc /De/), Agreement and Plan of Merger (Autoliv Inc)
The Offer. (a) Within ten Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 9.1 and subject to the satisfaction or waiver of each of the conditions to the Offer set forth in Annex A to this Agreement (the "Offer Conditions"), not later than the tenth (10th) business days day from the date of public announcement (as counting the business day on which such term announcement is defined in Rule 14d-1(g)(3made) promulgated under of the Exchange Act, “Business Days”) execution of this Agreement (which date of announcement shall be no later than the first business day after the date hereofexecution of this Agreement), Merger Sub shall, and Parent Acquiror shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) to commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act) an offer ")), the Offer at a price equal to purchase all outstanding shares of the Common Stock of the Company at the purchase price of $16.00 per Price for each and every share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to consummate the Offer, to accept for payment and to pay for any shares of Company Common Stock validly tendered pursuant to the Offer shall be subject solely to the satisfaction or waiver of the Offer Conditions. It is agreed that the Offer Conditions are for the benefit of Merger Sub and may be asserted by Merger Sub regardless of the Tender Offer Conditions. The Per Share Amount shall be net circumstances giving rise to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of condition and Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d)right, in its sole discretion, to waive any Tender such condition; provided that, without the prior written consent of Company, Merger Sub shall not waive the Minimum Condition (as defined in Annex A) or the condition set forth in paragraph (f) of Annex A. The initial time and expiration date of the Offer Conditionshall be 12:00 midnight Eastern Standard Time on the date that is the 20th business day following the commencement of the Offer (determined using Rule 14d-2 under the Exchange Act) (the "Scheduled Expiration Date" and any date to which the Offer is extended as permitted by Section 1.1(b) shall be referred to herein as the "Extended Expiration Date").
(b) Merger Sub expressly reserves the right, in its sole discretion, to increase the Per Share Amount or modify and make changes to make any other changes in the terms and conditions of the Offer; , provided, that without the prior written consent of Company (which consent will not be valid unless authorized by the Board of Directors of Company), Merger Sub shall not no modification or change may be made which (i) decrease decreases the Per Share Amount or change consideration payable in the Offer (except as permitted by this Agreement), (ii) changes the form of consideration payable in the Offer (other than by adding consideration), (iiiii) decrease changes the Minimum Condition, (iv) decreases the maximum number of shares of Company Common Stock sought pursuant to be purchased in the Offer, (iiiv) amend or waive satisfaction of changes the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any material conditions to the Offer in a manner adverse to manner
(c) On the holders date of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term commencement of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent Acquiror and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed file with the SEC with respect to the Offer a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO") with respect to the Offer which will comply in all material respects with the provisions of applicable federal securities laws, and will contain the offer to purchase relating to the Offer and forms of related letters of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "Offer Documents, as so corrected or supplemented, "). Acquiror shall deliver copies of the proposed forms of the Offer Documents to be promptly disseminated Company at least 48 hours prior to filing such documents with the Company’s stockholders, in each case as SEC for review and to the extent required comment by applicable Federal securities LawsCompany and its counsel. The Company and its counsel shall be given a reasonable opportunity not less than 48 hours to review any amendments and comment on any supplements to the Offer Documents (including each amendment or supplement thereto) before they are filed prior to their filing with the SECSEC or dissemination to Company's stockholders. Parent and Merger Sub Acquiror shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the provide Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, writing any comments (written or oral) that may be received by ParentMerger Sub, Merger Sub Acquiror or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly and in any event not later than 24 hours after the receipt thereof. The Company Each of Company, Acquiror and its counsel Merger Sub shall promptly correct any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respect and Acquiror and Merger Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date SEC and the other Offer Documents as so corrected to be disseminated to the stockholders of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend in each case, as and to the Expiration Date for any period extent required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENfederal securities laws.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Kulicke & Soffa Industries Inc), Merger Agreement (Kulicke & Soffa Industries Inc)
The Offer. (a) Within ten Subject to the conditions of this Agreement, as promptly as practicable (but in no event later than five (5) business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”days) after the date hereofof this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (commence, within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act) an offer ”), the Offer to purchase all of the outstanding shares of Company Common Stock; provided, that the Company agrees that no shares of Company Common Stock of owned by the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub will be tendered pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions obligations of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and of Parent to cause Merger Sub shall, upon the expiration of the Offerto, accept for payment, and pay for (after giving effect to for, any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be are subject solely only to the satisfaction or waiver by Merger Sub of conditions set forth in Exhibit A (as they may be amended in accordance with this Agreement, the Tender “Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer”).
(bi) Parent The initial expiration date of the Offer shall be midnight, New York City time, on behalf the 20th business day following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Merger Sub expressly reserves the right from time to right, at any time, subject to Section 1.1(c) and Section 1.1(d)to, in its sole discretion, to waive waive, in whole or in part, any Tender Offer Condition, to increase the Per Share Amount Condition or to make any other changes in modify the terms and conditions of the Offer; provided, that however, that, without the prior written consent of the Company, Merger Sub shall not (iA) decrease reduce the Per Share Amount number of shares of Company Common Stock subject to the Offer, (B) reduce the Offer Price or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iiiC) amend change, modify or waive satisfaction of the Minimum Tender Condition (as defined in Annex BExhibit A), (ivD) impose additional conditions add to the Offer Conditions, or modify any conditions to (E) otherwise amend the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Company Common Stock.
(cii) No agreement Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, any of the conditions to the offer (including the Minimum Tender Condition and the other conditions and requirements set forth herein and in Exhibit A) is not satisfied or, in Merger Sub’s sole discretion, waived, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of time to be determined at the sole discretion of the Merger Sub; provided, however, that in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or representation hereby is made or shall be made by (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII.
(iii) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after Merger Sub is legally permitted to do so under applicable Law. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer upon the expiration of the Offer is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, following the Offer Closing, extend the Offer for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (as defined below) may, in Merger Sub’s sole discretion, provide for such a reservation of right. Nothing contained in this Section 1.1(a) shall affect any termination rights in ARTICLE VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to information supplied by the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and other appropriate ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”), and cause the Offer Documents to be disseminated to the stockholders of the Company expressly for inclusion in, or with respect as and to Company information derived from the Company SEC Filings that is included or incorporated extent required by reference in, the Offer Documentsfederal securities laws. Each of Parent, Merger Sub and the Company each agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected amended or supplemented, supplemented to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the stockholders of the Company’s stockholders, in each case as soon as reasonably practicable and as and to the extent required by applicable Federal federal securities Lawslaws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment on any such Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. response, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments such comments. In the event that Parent or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, receives any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to (i) respond promptly after receipt thereof. The Company to such comments and its counsel shall be given a reasonable opportunity (ii) take all other actions necessary to review and comment upon any proposed responses before they are filed with resolve the SECissues raised therein.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds consideration necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the OfferOffer and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.
(gd) Promptly after Parent, Merger Sub or the Acceptance Datepaying agent for the Offer (the “Paying Agent”) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Merger Sub or the Company Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations issued pursuant thereto (the “Code”), or any provision of state or local Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate taxing authority, such withheld amounts shall take all action requested by Parent necessary to elect to be treated for all purposes of this Agreement as a “controlled company” as defined by Section 801(a) having been paid to the holder of the NYSE AMEX shares of Company Guide Common Stock in respect of which such deduction and make any necessary filings and disclosures associated with such statuswithholding was made by Parent, Merger Sub or the Paying Agent.
Appears in 2 contracts
Sources: Merger Agreement (Teva Pharmaceutical Industries LTD), Merger Agreement (Nupathe Inc.)
The Offer. (a) Within ten Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable, but in no event later than the fifth business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) day after the date hereofof this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, (and commence the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company Offer at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to Offer Price. The initial expiration date for the terms Offer shall be the twentieth business day following the commencement of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely only to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Per Share Amount shall Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be net asserted by Parent and Merger Sub regardless of the circumstances giving rise to the seller any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in cash, without interest, subject to reduction for any applicable withholding whole or stock transfer Taxes payable by such sellerin part. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of and Merger Sub expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer; providedPROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) amend modify or waive satisfaction of add to the Minimum Condition (as defined in Annex B)Tender Offer Conditions, (iv) impose additional conditions to change the form of consideration payable in the Offer or modify (v) make any conditions to other change in the terms of the Offer in a manner which is materially adverse to the holders of shares of Common Stock, (v) make any change in . Notwithstanding the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parentforegoing sentence, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Submay, without Parent or Merger Sub obtaining the consent of the Company, (iA) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in if at the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, expiration date of the Offer any of the Tender Offer Conditions is conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived by Parentwaived, for such periods of up until the third business day after the day Merger Sub reasonably believes to ten Business Days at a time (or such other period as shall be approved by the Company) earliest date on which such period of time as Merger Sub may deem reasonably necessaryconditions will be satisfied, but, except as provided in Section 1.1(d)(iii(B) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to extend the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant from time to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for time up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt maximum of an Acquisition Proposal in aggregate of 30 days beyond the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if first day all of the Tender Offer Conditions are satisfied have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation or waived and it is permitted under position of the SEC or the staff thereof applicable Law to accept for payment and pay for validly tendered shares the Offer. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of Common Stock that are not validly withdrawn. Nothing in termination of this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur Agreement pursuant to Section 2.7 hereof10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub may (in its sole discretion)shall extend the Offer from time to time, until subject to the Outside Dateright of Parent, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Tender Offer Conditions in accordance with Section 1.1(b)Offer, Merger Sub shall, and Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not properly withdrawn pursuant to the Offer (the date of acceptance for paymentwithdrawn. Parent shall provide, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agentprovided, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the all funds necessary to purchase any accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Bison Acquisition Corp), Merger Agreement (Entertainment Inc)
The Offer. (a) Within ten Subject to the conditions of this --------- Agreement, as promptly as practicable but in no event later than five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereofof this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and commence the Company shall cooperate with Merger Sub to) commence (Offer within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares applicable rules and regulations of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “"SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”"), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions obligation of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, --- and Merger of Parent to cause Sub shallto, upon commence the expiration of the Offer, Offer and accept for payment, and pay for (after giving effect to for, any required withholding or stock transfer Tax), all shares of Common Company Capital Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be are subject solely to the satisfaction or waiver conditions set forth in Exhibit A (any of which may be waived by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d)Sub, in its sole discretion, to waive any Tender Offer Conditionprovided that, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger -------- Sub may not waive the Minimum Tender Condition (as defined in Exhibit A)) and to the other conditions in this Agreement. The initial expiration date of the Offer shall be January 5, 2000. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) decrease reduce the Per Share Amount number of shares of Company Capital Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) reduce the price per share of Company Preferred Stock to be paid pursuant to the Offer, (iv) modify or add to the conditions set forth in Exhibit A, (v) extend the Offer, (vi) change the form of consideration payable in the Offer or (other than by adding consideration)vii) otherwise amend the Offer in any manner materially adverse to holders of Company Capital Stock. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) extend the Offer, if, at the scheduled expiration date of the Offer, any of the conditions to Sub's obligation to purchase shares of Company Capital Stock are not satisfied, until such time as such conditions are satisfied or waived, (ii) decrease extend the number Offer for any period required by any rule, regulation, interpretation or position of shares of Common Stock the SEC or the staff thereof applicable to be purchased in the Offer, Offer and (iii) amend extend the Offer for any reason for a period (a "Parent Extension Period") of not more than 10 ----------------------- business days beyond the latest expiration date that would otherwise be permitted under clause (i) or waive satisfaction (ii) of this sentence or that results from an extension of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions Offer requested by the Company pursuant to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Datenext sentence; provided, however, that this if Sub extends the Offer pursuant to clause (viii) of -------- ------- this sentence, it shall not limit waive during any such Parent Extension Period all conditions of the right Offer set forth in Exhibit A other than (x) the Minimum Tender Condition and (y) the condition in paragraph (b) of Exhibit A solely to the extent Parent and Merger Sub would violate any Applicable Law (as defined in Section 3.05(a)) or Judgment (as defined in Section 3.05(a)) in purchasing shares of Company Common Stock pursuant to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend Offer. If any of the Tender conditions of the Offer Conditions set forth in Exhibit A (other than to waive such Tender Offer Conditions, except for the Minimum Tender Condition) is not satisfied or (vii) modify or amend waived on any other term scheduled expiration date of the Offer, then, if requested by the Company, Sub shall extend the Offer one or more times (the period of each such extension to be determined by Sub) for up to 30 days in the case aggregate for all such extensions, provided that at the time of clauses (vi) such extension any such condition is reasonably capable of being satisfied. On the terms and (vii), in any manner adverse subject to the holders conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, pay for all shares of Common Company Capital Stock in their capacities validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as holders soon as practicable after the expiration of shares of Common Stockthe Offer.
(cb) No agreement or representation hereby is made or On the date of commencement of the Offer, Parent and Sub shall be made by Parent or Merger Sub file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to information supplied by the Company expressly for inclusion inOffer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inamendments thereto, the "Offer Documents"). Each of Parent, Merger Sub --------------- and the Company each agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected amended or supplemented, supplemented to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s 's stockholders, in each case case, as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEClaws. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by provide the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENcomments.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Tj International Inc), Agreement and Plan of Merger (Weyerhaeuser Co)
The Offer. (a) Within ten business days (If the Merger Agreement has not been terminated and ArQule is prepared to file with the SEC, and to disseminate to holders of ArQule shares, the Schedule 14D-9 on the same date as such term Purchaser commences the Offer, Purchaser has agreed to commence the Offer as promptly as practicable, and in no event later than December 20, 2019. Purchaser’s obligation to, and ▇▇▇▇▇▇’s obligation to cause Purchaser to, accept for payment and pay for Shares validly tendered in the Offer is defined in Rule 14d-1(g)(3) promulgated under subject only to the Exchange Actsatisfaction or, “Business Days”) after to the date hereofextent waivable by Parent or Purchaser, waiver of each of the Offer Conditions that are described below. On the terms and subject to the conditions and the Merger Sub shallAgreement, Purchaser will, and Parent shall will cause Merger Sub Purchaser to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, payment and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Offer as promptly as practicable on or after the Expiration Date. Parent on behalf of Merger Sub and Purchaser expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender of the Offer ConditionConditions, to increase the Per Share Amount Offer Price or to make any other changes in the terms and conditions of the Offer; providedprovided that, that without unless otherwise provided in the prior written consent of the CompanyMerger Agreement or previously approved by ArQule in writing, Merger Sub shall not (i) Parent and Purchaser will not: • decrease the Per Share Amount Offer Price or change the form of consideration payable in the Offer (other than by adding consideration), (ii) Offer; • decrease the maximum number of shares of Common Stock Shares subject to or sought to be purchased in the Offer, (iii) amend or waive satisfaction of ; • impose conditions on the Minimum Condition (as defined Offer in Annex B), (iv) impose additional conditions addition to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common StockConditions; • waive, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Minimum Condition or the Antitrust and Judgment/Illegality Conditions, except for the Minimum Condition) or (vii) modify or ; • amend any other term of the Offer, Offer in a manner that would reasonably be expected to adversely affect any ArQule stockholder in its capacity as such; • extend or otherwise change the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities Expiration Date except as holders of shares of Common Stock.
(c) No agreement required or representation hereby is made or shall be made permitted by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate Agreement as described below; or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for • provide any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number (or any extension thereof) within the meaning of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
. The Merger Agreement contains provisions that govern the circumstances under which Purchaser is required or permitted to extend the Offer and under which Parent is required to cause Purchaser to extend the Offer. Specifically, the Merger Agreement provides that: • if on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions (fas defined below in Section 15 – “Conditions of the Offer”) Promptly upon have not been satisfied or waived by Parent or Purchaser if permitted thereunder, then Purchaser may, and Parent may cause Purchaser to, in Parent’s and Purchaser’s sole discretion and without the consent of ArQule, extend the Offer on one or more occasions in consecutive increments of not more than 20 business days each (the length of such period to be determined by Parent and Purchaser in their discretion), or for such longer period as the parties may agree in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or waiver Purchaser to waive any Offer Conditions, other than the Minimum Condition); • Purchaser will, and Parent will cause Purchaser to, extend the Offer for (x) the minimum period required by Merger Sub applicable law, interpretation or position of the Tender SEC or its staff or Nasdaq or its staff and (y) periods of not more than 10 business days per extension, until any waiting period (and any extension thereof) applicable to the consummation of the Offer Conditions under the HSR Act has expired or been terminated; and • if, on the scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, at the request of ArQule, Purchaser will, and Parent will cause Purchaser to, extend the Offer on one or more occasions in accordance with Section 1.1(b), Parent shall cause consecutive increments of not more than 10 business days each. The Merger Sub Agreement provides that Purchaser will not in any event be required to, and Merger Sub shallParent will not in any event be required to cause Purchaser to, (i) extend the Offer beyond the Outside Date or (ii) extend the Offer beyond the initial Expiration Date on more than three occasions, not to exceed an aggregate of 30 business days (provided that each such extension will be 10 business days unless ArQule agrees otherwise), if, as soon as practicable after of the applicable Expiration Date, accept for payment all of the Offer Conditions are satisfied or have been waived other than the Minimum Condition and pay for all shares conditions which by their nature are to be satisfied at the expiration of Common Stock the Offer. If the Merger Agreement is validly tendered terminated, Purchaser will, and Parent will cause Purchaser to, promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, will not properly withdrawn acquire any Shares pursuant to the Offer (the date and will cause any depository acting on behalf of acceptance for paymentPurchaser to return, the “Acceptance Date”)in accordance with applicable law, which acceptance may be by oral notice all tendered Shares to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerregistered holders thereof.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article VI hereof and none of the conditions set forth in Annex A hereto (as such term is defined in Rule 14d-1(g)(3the "Offer Conditions") promulgated under the Exchange Actshall have occurred or be existing, “within six Business Days”) after Days of the date hereof, Merger Sub shallAcquisition will, and Parent shall will cause Merger Sub Acquisition to, commence a tender offer (and the "Offer") for all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "Company Common Stock") at a price per share of the Company Common Stock of U.S. $19.10 net to the seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, including Annex A hereto.
(b) Provided that this Agreement shall cooperate not have been terminated in accordance with Merger Sub Article VI hereof, the obligation of Acquisition to, and Parent to cause Acquisition to, accept for payment, purchase and pay for any Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the Offer Conditions including the condition that at least that number of shares of Company Common Stock equivalent to a majority of the total issued and outstanding shares of Company Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"); provided that for the purpose of determining whether the Minimum Condition has been met, any shares of Company Common Stock that have been acquired by Parent pursuant to the option granted to Parent in the Shareholders Agreement shall be deemed to have been validly tendered and not withdrawn prior to the expiration of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Acquisition pursuant to the Offer. Acquisition expressly reserves the right, in its sole discretion, to waive any of the Offer Conditions (other than the Minimum Condition), to increase the consideration payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that Acquisition will not, and Parent will cause Acquisition not to, without the prior written consent of the Company (such consent to be authorized by the Company Board): (i) commence waive the Minimum Condition, (ii) decrease the amount or change the form of consideration payable in the Offer, (iii) decrease the number of shares of Company Common Stock sought in the Offer, (iv) impose additional conditions to the Offer, (v) change any Offer Condition, (vi) amend any other term of the Offer in any manner materially adverse to the holders of Company Common Stock (other than Parent or Acquisition) or (vii) except as provided below, extend the Offer. Subject to the terms and conditions hereof, the Offer shall remain open until midnight, New York City time, on the date that is twenty Business Days after the Offer is commenced (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act) an offer to purchase all outstanding shares of Common Stock ")); provided, however, that without the consent of the Company at the purchase price of $16.00 per share of Common Stock Board, Acquisition may (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of x) extend the Offer, if at the “Per Share Amount”) and shall, on the scheduled expiration date of commencement of the Offer but after affording any of the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to Offer Conditions shall not have been satisfied or waived, for one or more periods (each such period shall not exceed ten Business Days) until such time as such conditions are satisfied or waived, (y) extend the Offer for such period as may be required by any comments made therebyrule, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements theretoregulation, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with interpretation or position of the Securities and Exchange Commission (the “"SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition") or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) thereof applicable to the Offer, including in connection with an increase in the Per Share Amount, or (iiz) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such an aggregate period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less more than ten Business Days prior to beyond the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.latest
Appears in 1 contract
The Offer. (a) Within ten business days (Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in Annex I hereto, as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) ------- promptly as practicable after the date hereof, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, (and amend the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an Initial Offer to offer to purchase any and all outstanding shares of Common Stock of the Company outstanding Shares at the purchase a price of $16.00 8.50 per share of Common Stock Share, net to the seller in cash (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant the "Offer"). The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the “Per Share Amount”) and shall, on the expiration date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made therebynot withdrawn, file a Tender Offer Statement on Schedule TO (number of Shares that, together with all amendments the Shares then beneficially owned by Parent, Merger Subsidiary and supplements theretoSaint-Gobain, represents at least a majority of the total number of outstanding Shares on a fully diluted basis (including the exhibits thereto, exercise of all outstanding options) (the “Schedule TO”"Minimum Condition") and all to the other necessary documents with conditions set forth in Annex I hereto. Merger Subsidiary expressly reserves the Securities and Exchange Commission (right to ------- waive any of the “SEC”) and cause such documents conditions to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (and to make any change in the “Offer Documents”), and shall consummate terms or conditions of the Offer, subject provided that, no change or waiver may be made that, without the prior written consent of the Company, waives the Minimum Condition, changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer or imposes conditions to the terms Offer in addition to those set forth in Annex I. Notwithstanding the foregoing, without the consent of the Company, ------- Merger Subsidiary shall have the right to extend the Offer from time to time if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived; provided that Merger Subsidiary may extend the Offer under this clause for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law. If all of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Merger Subsidiary shall extend the Offer from time to time until such conditions are satisfied or waived (but not beyond July 31, 2000); provided that (w) such conditions are reasonably capable of being satisfied, (x) the Company exercises its reasonable best efforts to cause such conditions to be satisfied, (y) an Acquisition Proposal shall not have been publicly announced and conditions hereof not withdrawn as of such scheduled expiration date and thereof. The Offer Documents will comply (z) the Company is in compliance with all material respects with the provisions of all applicable Federal securities Lawsits covenants in this Agreement. Subject to the foregoing and to the terms and conditions of this Agreement the Offer, Merger Subsidiary shall, and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub it to, accept for payment and Merger Sub shallpay for, upon as promptly as practicable after the expiration of the Offer, all Shares properly tendered and not withdrawn pursuant to the Offer that Merger Subsidiary is obligated to purchase. Parent shall provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to pay for any Shares that Merger Subsidiary becomes obligated to accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax)for, all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) As soon as practicable after the date hereof, Parent on behalf of and Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Subsidiary shall amend their Tender Offer Condition, Statement on Schedule TO (the "Schedule TO") with respect to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions which will contain a supplement to the Offer or modify any conditions offer to purchase and a revised letter of transmittal (the Schedule TO and all documents included therein pursuant to which the Offer in a manner adverse to the holders of shares of Common Stockwill be made, (v) make together with any change in the Offer that would require an extension supplements or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inamendments thereto, the "Offer Documents"). Parent, Merger Sub Parent and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Parent and Merger Sub shall Subsidiary agree to take all steps necessary to cause the Schedule TO, TO as so corrected or supplemented, to be filed with the SEC and the other Offer Documents, Documents as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities Lawslaws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days amended Schedule TO prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENbeing filed.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten Provided that this Agreement shall not have been terminated in accordance with Article IX, then (i) not later than the first Business Day after execution of this Agreement, Parent and Company shall issue a public announcement of the execution of this Agreement, and (ii) Subsidiary shall, as promptly as practicable, but in no event later than five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shallof such public announcement, and Parent shall cause Merger Sub Subsidiary to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer. The Offer shall be made pursuant to the Offer to Purchase and
1. related Letter of Transmittal in form reasonably satisfactory to Company and containing the terms and conditions set forth in this Agreement. The obligation of Subsidiary to, and of Parent to cause Subsidiary to, commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Subsidiary in its sole discretion, provided, however, that the Subsidiary shall not waive the Minimum Condition without the prior written consent of the Company). Subsidiary expressly reserves the right, subject to compliance with the Exchange Act) an offer , to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to modify the terms of the Offer, except that, without the “Per Share Amount”express written consent of Company, neither Parent nor Subsidiary shall (i) and shallreduce the number of Shares subject to the Offer, on (ii) reduce the Offer Price, (iii) add to or modify the Offer Conditions, (iv) except as provided in the next sentence, change the expiration date of commencement the Offer, (v) change the form of consideration payable in the Offer or (vi) amend, alter, add or waive any term of the Offer but in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after affording the commencement date of the Offer, all Offer Conditions have not been satisfied or waived, Subsidiary may, and at the request of the Company shall, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days, and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to Subsidiary may, without the consent of Company, (A) extend the Offer for any comments made therebyperiod required by any rule, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements theretoregulation, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with interpretation or position of the Securities and Exchange Commission (the “"SEC”") and cause such documents or the SEC staff applicable to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject and (B) extend the Offer for up to ten Business Days if there have been validly tendered and not withdrawn prior to the terms expiration of the Offer such number of Shares that would constitute at least 75% but less than 90% of the issued and conditions hereof and thereof. The Offer Documents will comply in all material respects with outstanding Shares as of the provisions date of all applicable Federal securities Lawsdetermination. Subject only to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”)Exhibit A, Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, and Merger Sub shall, upon as soon as practicable after the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock Shares validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub that Subsidiary becomes obligated to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) On the date of commencement of the Offer, Parent and Subsidiary shall file with the SEC a Tender Offer Statement on behalf of Merger Sub expressly reserves the right Schedule 14D-1 (as supplemented or amended from time to time, subject the "Schedule 14D-1") with respect to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (iii) amend such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or waive satisfaction amendments thereto, the "Offer Documents"). Parent and Subsidiary agree that the Offer Documents shall comply as to form and content in all material respects with the Exchange Act and the rules and regulations promulgated thereunder, and the Offer Documents, on the date first published, sent or given to Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the Minimum Condition (as defined in Annex B)circumstances under which they were made, (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditionsmisleading, except for the Minimum Condition) that no representation or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby warranty is made or shall be made by Parent or Merger Sub Subsidiary with respect to written information supplied by the Company expressly or any of its stockholders specifically for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated incorporation by reference in, in the Offer Documents. Parent, Merger Sub Subsidiary and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, Subsidiary further agree to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.steps
Appears in 1 contract
Sources: Merger Agreement (Urs Corp /New/)
The Offer. (a) Within ten business days As promptly as reasonably practicable (as such term is defined and, in Rule 14d-1(g)(3any event, within five (5) promulgated under the Exchange Act, “Business Days”) after the date hereofof execution of this Agreement by all parties hereto), Merger Acquisition Sub shall, and Parent shall cause Merger Acquisition Sub to, (and the Company shall cooperate with Merger Sub to) commence (commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer , the Offer. The obligations of Acquisition Sub to, and of Parent to purchase all outstanding cause Acquisition Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Annex I (the “Offer Conditions”). The Offer shall initially expire at 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the Company at Offer (determined using Rule 14d-1(g)(3) promulgated under the purchase price of $16.00 per share of Common Stock (such priceExchange Act). Acquisition Sub expressly reserves the right to waive, in whole or in part, any higher price per share of Common Stock paid by Merger Sub pursuant to Offer Condition or modify the terms of the Offer; provided, however, that, without the consent of the Company, Acquisition Sub shall not, and Parent shall not permit Acquisition Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) amend, modify or waive the Minimum Tender Condition, (iv) add to the Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to any holder of Company Common Stock, (v) except as expressly provided in this Section 2.1(a), terminate, extend or otherwise amend or modify the expiration date of the Offer, (vi) change the form of consideration payable in the Offer, (vii) otherwise amend, modify or supplement any of the terms of the Offer in any manner adverse to any holder of Company Common Stock or (viii) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. Notwithstanding any other provision of this Agreement to the contrary, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, (i) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties hereto may agree) each, if, at any then-scheduled expiration of the Offer, any Offer Condition (other than the Minimum Tender Condition) shall not have been satisfied or waived, until such time as each such condition shall have been satisfied or waived and (ii) extend the Offer for the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; provided, however, that Acquisition Sub shall not be required to extend the Offer beyond the Termination Date. Notwithstanding any other provision of this Agreement to the contrary, if, at any then-scheduled expiration of the Offer, each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, then Acquisition Sub may and, if requested by the Company, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, extend the Offer by increments of five (5) Business Days; provided, however, that the maximum number of days that the Offer may be extended pursuant to this sentence shall be twenty (20) Business Days unless requested or approved by the Company; provided, further, that Acquisition Sub shall not be required to extend the Offer beyond the Termination Date. Upon the terms and subject to the conditions of the Offer and this Agreement, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, accept for payment, and pay for, all shares of Company Common Stock that Acquisition Sub becomes obligated to purchase pursuant to the Offer promptly after the expiration of the Offer. Payment of shares of Company Common Stock by Acquisition Sub pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Per Share Amount”Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 2.1(a)), unless this Agreement is validly terminated in accordance with Section 8.1. If (i) at any then-scheduled expiration of the Offer, (x) each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived, (y) the Minimum Tender Condition shall not have been satisfied and shall(z) no further extensions or re-extensions of the Offer are permitted or required pursuant to this Section 2.1(a) or (ii) this Agreement is terminated pursuant to Section 8.1, then, in each case, Acquisition Sub shall promptly (and, in any event, within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. The termination of the Offer pursuant to clause (i) of the immediately preceding sentence is referred to in this Agreement as the “Offer Termination,” and the date on which the Offer Termination occurs is referred to in this Agreement as the “Offer Termination Date.” If the Offer is terminated or withdrawn by Acquisition Sub, or this Agreement is terminated in accordance with Section 8.1, Acquisition Sub shall promptly return, and shall cause any depository acting on behalf of Acquisition Sub to return, all tendered shares of Company Common Stock to the registered holders thereof.
(b) On the date of commencement of the Offer but after affording Offer, Parent and Acquisition Sub shall file with the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made therebySEC, file in accordance with Rule 14d-3 promulgated under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock), which shall include, as required by Rule 14d-4 promulgated under the Exchange Actexhibits, in each case in connection with an offer to purchase and a related letter of transmittal, a summary advertisement and other ancillary Offer documents pursuant to which the Offer will be made (such Schedule TO and the documents attached as exhibits thereto, together with any amendments or supplements thereto, the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in Company shall promptly furnish to Parent and Acquisition Sub all material respects with information concerning the provisions of all applicable Federal securities Laws. Subject Company that is required by the Exchange Act to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions be set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Each of Parent, Merger Acquisition Sub and the Company each agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Acquisition Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TOOffer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal federal securities Laws. The Parent and Acquisition Sub shall promptly notify the Company upon the receipt of any comments from the SEC (or the staff of the SEC) or any request from the SEC (or the staff of the SEC) for amendments or supplements to the Offer Documents, and its counsel shall be given provide the Company with copies of all correspondence between Parent, Acquisition Sub and their respective Representatives, on the one hand, and the SEC (or the staff of the SEC), on the other hand. Parent and Acquisition Sub shall use their respective reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC (or the staff of the SEC) with respect to the Offer Documents. Prior to the filing of the Offer Documents (or any amendment or supplement thereto) or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, Parent and Acquisition Sub shall provide the Company a reasonable opportunity to review and comment to propose comments on any Offer Documents (including each amendment such document or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECresponse.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereofprovide, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agentprovided, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Acquisition Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Acquisition Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Steinway Musical Instruments Inc)
The Offer. (a) Within ten business days (Subject to the provisions of this Agreement and this Agreement not having been terminated in accordance with Section 7.1, as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) promptly as practicable after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, but in no event later than ten (and 10) Business Days following the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock public announcement of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions execution of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, Parent and Purchaser shall commence (within the “Expiration Date”). Merger Sub shall not terminate or withdraw meaning of Rule 14d-2 under the Offer other than in connection Securities Exchange Act of 1934, as amended (together with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations promulgated thereunder, the "Exchange Act")) the Offer to exchange all of the SEC or outstanding shares of Company Common Stock for the NYSE AMEX right to receive from Purchaser, for each Share validly tendered and not withdrawn, the Offer Price payable in an amount of cash (“NYSE AMEX”the "Cash Consideration") applicable and a number of validly issued, fully paid and nonassessable shares of Parent Common Stock (the "Stock Consideration") in each case determined in accordance with Annex II hereof (such cash amount and number of shares of Parent Common Stock, the "Offer Consideration"). The obligation of Purchaser to accept for payment, and pay for, Shares tendered pursuant to the OfferOffer 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, including as defined below, or any Parent Stock Condition, as defined in connection with an increase in Annex I hereto) and to the Per Share Amount, (ii) shall extend the Expiration Date if, on any then terms and conditions of this Agreement. The initial scheduled Expiration Date, any expiration date of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten shall be twenty (20) Business Days at a time (or such other period as after the Offer is commenced. As used herein, the term "Minimum Condition" shall be approved by mean that there shall have been validly tendered and not withdrawn prior to the Company) which such period expiration of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in any extension thereof) such number of Shares that would constitute seventy percent (70%) of the Per Share Amountoutstanding Voting Common Stock (determined on a fully diluted, as converted basis for all outstanding shares of Class B Common Stock, stock options and any other rights to acquire shares of Voting Common Stock (collectively, a "Fully Diluted Basis"), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) ). No Shares held by the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation or any of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal subsidiaries will be tendered in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Kellwood Co)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article VIII, and that no event shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions in Annex I, as promptly as practicable (as such term is defined and in Rule 14d-1(g)(3any event within five (5) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Acquisition Sub shall, shall (and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Acquisition Sub to) commence (commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (to purchase all the “Offer Documents”), and shall consummate the Offer, subject outstanding Common Stock at a price per share equal to the terms and conditions hereof and thereofOffer Price. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration consummation of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Acquisition Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
, shall be subject to: (bi) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock which, together with the number of shares of Common Stock (if any) then owned of record by Parent or Acquisition Sub or with respect to which Parent or Acquisition Sub otherwise has, directly or indirectly, sole voting power, represents at least 60% of the shares of Common Stock then outstanding (determined on behalf a fully diluted basis) and no less than 60% of Merger the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote in the election of directors (collectively, the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Acquisition Sub, of the other conditions and requirements set forth in Annex I. The conditions to the Offer set forth in Annex I are for the sole benefit of Parent and Acquisition Sub expressly reserves and may be asserted by Parent or Acquisition Sub regardless of the right circumstances (including any action or inaction by Parent or Acquisition Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition or may be waived by Parent or Acquisition Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to this Section 1.1(c2.1.
(b) and Section 1.1(d), in its sole discretion, Subject to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B)and the satisfaction, (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made waiver by Parent or Merger Sub with respect to information supplied by Acquisition Sub, of the Company expressly for inclusion inother conditions and requirements set forth in Annex I, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Acquisition Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC (and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Acquisition Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer as promptly as possible on or after the applicable Expiration Date. The Offer Price payable in respect of each share of Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law.
(c) The Offer shall be made by means of an offer to purchase (the date “Offer to Purchase”) that describes the terms and conditions of acceptance for paymentthe Offer in accordance with this Agreement, including the “Acceptance Date”)Minimum Condition and the other conditions and requirements set forth in Annex I. Parent and Acquisition Sub expressly reserve the right to increase the Offer Price, which acceptance may be to make other changes in the terms and conditions of the Offer or to waive any condition of the Offer; provided, however, unless previously approved by oral notice to the Paying AgentCompany in writing, Parent and Acquisition Sub shall not: (i) decrease the Offer Price, (ii) on change the Acceptance Dateform of consideration payable in the Offer, deposit or cause to be deposited with (iii) reduce the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted maximum number of shares of Common Stock to be purchased in the Offer, (iv) amend or waive the Minimum Condition or the conditions set forth in clauses (b) or (c)(i) of Annex I or (v) amend any other term or condition of the Offer in a manner adverse to the holders of Common Stock.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 9:00 a.m. (New York City time) on the date that is twenty-two (22) Business Days following the commencement of the Offer (such time and date, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied (provided that, solely for purposes of determining whether the Minimum Condition has been satisfied in determining whether the Offer should be extended under the first sentence of this Section 2.1(e), shares of Common Stock subject to a Support Agreement shall be deemed to have been tendered into the Offer so long as the stockholder party thereto is not then in breach of its tender obligations thereunder) or, to the extent waivable by the Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that, Acquisition Sub shall not be required to extend the Offer beyond August 24, 2010 (the “Outside Date”) and shall not extend the Offer beyond the Outside Date without the Company’s consent. In addition, Acquisition Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff. Notwithstanding the foregoing, (i) Acquisition Sub may extend the Offer, in its sole discretion, for successive periods of up to five (5) Business Days each and for an aggregate period of not more than twenty (20) Business Days (less any number of Business Days that the Offer is commenced after May 3, 2010) beyond the last scheduled Expiration Date of the Offer (and in no case beyond the Outside Date) otherwise permitted hereunder, if all of the conditions to the Offer have been satisfied (provided that, solely for purposes of determining whether the Minimum Condition has been satisfied in determining whether the Offer may be extended under the third sentence of this Section 2.1(e), shares of Common Stock subject to a Support Agreement shall be deemed to have been tendered into the Offer) and such extension is necessary for the conditions to the Available Financing to be fulfilled; and (iiiii) Acquisition Sub shall extend the Offer, if requested to do so by written notice delivered by the Company to Acquisition Sub no later than one (1) Business Day prior to the then scheduled Expiration Date of the Offer, for successive periods of up to five (5) Business days each (or such longer period as soon as practicable following the Company and Acquisition Sub shall mutually agree) beyond the last scheduled Expiration Date of the Offer, but in no case beyond August 11, 2010, if all of the conditions to the Offer have been satisfied (provided that, solely for purposes of determining whether the Minimum Condition has been satisfied in determining whether the Offer may be extended under the third sentence of this Section 2.1(e), shares of Common Stock subject to a Support Agreement shall be deemed to have been tendered into the Offer) and such depositextension is necessary for the conditions to the Available Financing to be fulfilled.
(f) If necessary to obtain sufficient shares of Common Stock to reach the Short Form Threshold and the Top-Up Option is otherwise legally unavailable or insufficient to permit the Company to reach the Short Form Threshold immediately after the Acceptance Time, Acquisition Sub may, in its sole discretion, provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Subject to the terms and conditions of this Agreement and the Offer, Acquisition Sub shall (and Parent shall cause the Paying Agent to Acquisition Sub to) immediately accept for payment, and promptly pay for for, all shares of Common Stock so accepted that are validly tendered pursuant to the Offer during such “subsequent offering period.” The Offer Documents shall provide for paymentthe possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 2.1(f).
(g) Acquisition Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, Acquisition Sub shall (and Parent shall provide cause Acquisition Sub to) promptly terminate the Offer and shall not acquire the shares of Common Stock pursuant thereto. If the Offer is terminated by Acquisition Sub, or this Agreement is terminated prior to the purchase of shares of Common Stock in the Offer, Acquisition Sub shall promptly return, and shall cause any depositary acting on behalf of Acquisition Sub to be provided to Merger Sub on a timely basis the funds necessary to purchase any return, in accordance with applicable Law, all tendered shares of Common Stock that Merger Sub becomes obligated to purchase pursuant have not then been purchased in the Offer to the Offerregistered holders thereof.
(gh) Promptly after As soon as practicable on the Acceptance date of the commencement of the Offer, Parent and Acquisition Sub shall file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal (the Schedule TO, Offer to Purchase and letter of transmittal, together with any amendments and supplements thereto, being referred to herein as the “Offer Documents”). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders and on the Expiration Date, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading except that no representation is made by the Parent or Acquisition Sub with respect to information supplied by the Company shall take all action requested by in writing for inclusion therein. Parent necessary and Acquisition Sub agree to elect cause the Offer Documents to be treated disseminated to holders of shares of Common Stock, as and to the extent required by all applicable Laws, including the Exchange Act. Parent and Acquisition Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents, if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law, and Parent and Acquisition Sub agree to cause the Offer Documents, as so corrected, to be filed with the SEC and disseminated to holders of shares of Common Stock, in each case as and to the extent required by all applicable Laws, including the Exchange Act. The Company and its counsel shall be given a “controlled company” as defined reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and Acquisition Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by Section 801(a) the Company and its counsel. In addition, Parent and Acquisition Sub shall provide the Company and its counsel promptly with copies of any written comments, and shall inform them of any oral comments, that Parent, Acquisition Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any proposed written or oral responses and Parent and Acquisition Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel and to participate in any substantive telephonic communications with the staff of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such statusSEC related thereto.
Appears in 1 contract
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events or conditions set forth in Annex A shall have occurred and be existing and shall not have been waived in writing by Parent or Merger Sub (as such term is defined the conditions set forth in Rule 14d-1(g)(3) promulgated under Annex A, the Exchange Act, “Business DaysTender Offer Conditions”) after the date hereof), Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the U.S. Securities Exchange Act) an offer to purchase all outstanding shares Act of Common Stock of 1934, as amended (together with the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offerrules and regulations thereunder, the “Per Share AmountExchange Act”)) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made therebyon August 31, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof2007. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without Without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount Offer Price or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse addition to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for waive or amend the Minimum Condition) or (vii) modify Condition or amend any other term of the Offer, Offer in the case of clauses (vi) and (vii), in any a manner which is materially adverse to the holders Company Shareholders; provided that Merger Sub expressly reserves the right to increase the Offer Price and to waive any of the Tender Offer Conditions, other than the Minimum Condition. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in their capacities as holders of shares of Common Stockthe Offer.
(cb) No agreement Merger Sub shall, and Parent shall cause Merger Sub to, file with the U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date that the Offer is commenced, which Tender Offer Statement shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the “Offer Documents”) and, subject to the Company’s compliance with Section 1.02(c), cause the Offer Documents to be disseminated to the Company Shareholders in accordance with the applicable requirements of the U.S. federal securities Laws. Parent and Merger Sub agree that the Offer Documents shall comply in all material respects with the applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the Company Shareholders and on the Acceptance Date, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant, agreement, representation hereby or warranty is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated incorporation by reference in, in the Offer Documents. ParentThe Company, Parent and Merger Sub and the Company each agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. , and Parent and Merger Sub shall further agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and Company Shareholders to the extent required by applicable Federal securities LawsLaw. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 1.01(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed and any amendments thereto in advance of filing with the SEC. SEC or dissemination to the Company Shareholders, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documentscounsel. Parent and Merger Sub shall (i) provide the Company and its counsel with (in writing, if written), and shall consult with the Company regarding, a copy of any written comments (written or oral) that may be received by Parent, telephonic notification of any oral comments Parent or Merger Sub or their counsel may receive from the SEC or its staff (the “SEC Staff”) with respect to the Offer Documents as promptly as practicable after the receipt thereof. The , (ii) consult in good faith with the Company and its counsel shall be given prior to responding to any such comments, and (iii) provide the Company and its counsel with a reasonable opportunity to review copy of any written responses thereto and comment upon telephonic notification of any proposed oral responses before they are filed with the SECthereto of Parent and Merger Sub or their counsel.
(dc) The initial expiration date of Subject to the terms and conditions thereof, the Offer shall be at remain open until midnight, New York City time, on at the 20th end of the twentieth (20th) Business Day following beginning with (and including) the commencement of date that the Offer is commenced (determined using Rules 14d-1(g)(3in accordance with Rule 14d-1(g) and 14d-2 promulgated (3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). , unless Merger Sub shall not terminate or withdraw have extended the period of time for which the Offer other than is open pursuant to, and in connection with accordance with, the effective termination following provisions of this Agreement sentence or as may be required by applicable Law, in accordance with Section 7.1 hereof. Notwithstanding which event the foregoingterm “Expiration Date” shall mean the latest time and date as the Offer, unless this Agreement is terminated in accordance with ARTICLE SEVENas so extended may expire; provided, Merger Subhowever, without Parent or that Merger Sub obtaining shall have the consent of right, in its sole discretion, but not the Company, obligation to (i) shall extend the Expiration Date Offer for any period required by the rules and regulations one or more periods of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date not more than five Business Days each if, on any then at the scheduled Expiration Date, any of the Tender Offer Conditions is shall not have been satisfied or waived by Parent, for such periods of up to ten Business Days at a time (waived; or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In but the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Company Common Stock to enable that have been validly tendered and not withdrawn in the Offer, together with any shares of Company Common Stock then owned by Parent, is less than 90% of the outstanding shares of Company Common Stock, commence a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days period (as provided in accordance with Rule 14d-11 promulgated under the Exchange Act.
) for three (f3) Promptly upon the satisfaction or waiver by to twenty (20) Business Days to acquire outstanding shares of Company Common Stock. Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after SEC or of the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant Staff applicable to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Rare Hospitality International Inc)
The Offer. (a) Within ten business days Subject to the provisions of this Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in no event later than five Business Days after the date of such term is defined in announcement, commence (within the meaning of Rule 14d-1(g)(314d-2(a) promulgated under of the Exchange Act) a tender offer (the “Offer”) to purchase all of the outstanding shares of Company Common Stock at a price of $10.00 per share, net to the seller in cash without interest (the “Price Per Share”), subject to reduction only for any applicable withholding taxes. The Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment, purchase and pay for shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) at least that number of shares of Company Common Stock equivalent to 75% of the Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer (subject to reduction as described below, the “Minimum Shares”) being validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction of the other conditions set forth in Annex A hereto, any of which conditions may be waived by Merger Sub in its sole discretion; provided, however, that Merger Sub shall not reduce the Minimum Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall (i) decrease the Price Per Share payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer below a majority of the Fully Diluted Shares of Company Common Stock or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer (including the conditions set forth in Annex A hereto) or impose additional conditions to the Offer, (iv) except as provided below, change the expiration date of the Offer, or (v) otherwise amend, add or waive any term or condition of the Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after the commencement date of the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days without the Company’s prior written consent, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); provided further that if on any scheduled expiration date of the Offer all conditions to the Offer (other than the Minimum Shares) have been satisfied or waived, and the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent at least a majority of the Fully Diluted Shares of Company Common Stock, and Merger Sub does not elect to reduce the Minimum Shares and consummate the Offer, then Merger Sub shall, at the Company’s request, on up to three occasions, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days”, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) after without the date hereofconsent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer and (y) extend the Offer if (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of Company Common Stock; provided, however, that in no event shall the extensions permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Assuming the prior satisfaction or waiver of all the conditions to the Offer set forth in Annex A, and subject to the terms and conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (accept for payment, purchase and the Company shall cooperate pay for, in accordance with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (as soon as reasonably practicable after the date expiration of acceptance for paymentthe Offer. Parent shall provide, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agentprovided, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub Sub, on a timely basis basis, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of Provided that this Agreement shall not --------- have been terminated in accordance with Section 8.1 and no event shall have occurred or circumstance shall exist which constitutes a failure to the satisfaction or waiver satisfy any of the conditions set forth in Annex B hereto (A hereto, Subsidiary shall commence the “Tender Offer Conditions”)as promptly as practicable, Parent shall cause Merger Sub to, and Merger Sub shall, upon but in no event later than the expiration fifth business day following the public announcement of the Offer, terms of this Agreement. The obligation of Subsidiary to accept for payment, payment and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly Shares tendered pursuant to the Offer shall be subject to the condition that a number of Shares representing not less than 75% of the Company's outstanding voting power (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) shall have been validly tendered and not validly withdrawn on prior to the Acceptance Date. The expiration of the Offer (the "Minimum Condition"), and the obligation of Merger Sub Subsidiary to commence the Offer and accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be Shares tendered pursuant to the Offer.
(b) Parent on behalf Offer shall be subject to the other conditions set forth in Annex A hereto. It is agreed that the Minimum Condition and the other conditions set forth in Annex A hereto are for the sole benefit of Merger Sub Subsidiary and may be asserted by Subsidiary regardless of the circumstances giving rise to any such condition. Subsidiary expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Conditionsuch condition, to increase the Per price per Share Amount payable in the Offer or to make any other changes in the terms and conditions of the Offer; provided, provided that without --------- Subsidiary may only waive the prior written consent Minimum Condition as long as Subsidiary purchases at least a majority of the CompanyShares outstanding (assuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel) and that, Merger Sub shall not (i) decrease unless previously approved by the Per Company in writing, no change may be made that decreases the price per Share Amount or change payable in the Offer, changes the form of consideration payable in the Offer Offer, reduces the maximum number of Shares that Subsidiary offers to purchase in the Offerbelow a majority of the Shares outstanding (other than by adding considerationassuming the exercise of all outstanding options to purchase Shares which options are not subject to binding agreements to cancel), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any imposes conditions to the Offer in a manner addition to those set forth in Annex A hereto or otherwise amends the terms of the Offer in any way that would be materially adverse to the holders of shares Shares. Subject to the next sentence, Subsidiary covenants and agrees that, subject to the terms and conditions of Common Stockthis Agreement, including, without limitation, the conditions of the Offer set forth in Annex A hereto, Subsidiary shall accept for payment and pay for Shares which have been validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law. Notwithstanding the foregoing, Subsidiary (i) may extend the Offer to purchase Shares in excess of the Shares required to satisfy the Minimum Condition up to the tenth business day following the date on which all conditions to the Offer shall first have been satisfied or waived, provided that, by virtue of making any such extension, Subsidiary shall be deemed to waive and thereafter shall not be entitled to assert any of the conditions to the consummation of the Offer contained in subsections (b), (vc), (d) make any change and (e) to Annex A hereto, (ii) shall extend the Offer at least until 11:59 p.m. New York City time on the sixth business day following the delivery to Parent of a Notice of Superior Proposal (as defined in Section 6.8) and (iii) shall extend the Offer at least until the expiration of the period set forth in paragraph (d) or (e) of Annex A if a notice of breach has been delivered in accordance therewith. The Per Share Amount payable in the Offer that would require an extension or delay shall be paid net to the seller in cash, upon the terms and subject to the conditions of the then current Expiration Date; provided, however, that this clause Offer.
(vb) shall not limit As soon as practicable on the right date of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term commencement of the Offer, Parent and Subsidiary shall file (i) with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer and (ii) with the appropriate Canadian authorities any required filings with respect to the Offer, which in the case of clauses both (vii) and (vii)ii) will contain the offer to purchase, in any manner adverse to form of the holders related letter of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement transmittal and related documents published or representation hereby is made or shall be made filed by Parent or Merger Sub Subsidiary (together with respect to information supplied by the Company expressly for inclusion in, any supplements or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inamendments thereto, the "Offer Documents"). Parent, Merger Sub Subsidiary and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it any such information shall have become false or misleading in any material respect. respect and Parent and Merger Sub shall Subsidiary each further agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, appropriate Canadian authorities and to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed prior to their filing with the SEC. Parent SEC and Merger Sub the appropriate Canadian authorities and shall give reasonable and good faith consideration to be provided with any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or Subsidiary and their counsel may receive from the SEC or its staff the appropriate Canadian authorities with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECof such comments.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Acquisition Agreement (International Murex Technologies Corp)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Section 6.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, then as promptly as reasonably practicable following the execution of this Agreement (as such term is defined but in Rule 14d-1(g)(3no event later than fifteen (15) promulgated under the Exchange Act, “Business Days”) after Days following the date hereof), Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer the Offer to purchase for cash all outstanding the shares of Company Common Stock at the Offer Price; provided, however, that Merger Sub shall not commence the Offer prior to the tenth Business Day following the date hereof without the prior written consent of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereofCompany. The Offer Documents will comply in all material respects with the provisions obligations of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and of Parent to cause Merger Sub shall, upon the expiration of the Offerto, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax)for, all shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the final expiration of The Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn on prior to the Acceptance Datefinal expiration of the Offer that number of shares of Company Common Stock which, together with the shares of Company Common Stock then beneficially owned by the Parent or Merger Sub (including, without limitation, the shares of Company Common Stock to be sold to Merger Sub pursuant to the Stock Purchase Agreement), represents at least 66-2/3% of the outstanding shares of Company Common Stock (the "MINIMUM CONDITION") and (ii) the other conditions set forth in Annex I hereto. The obligation Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by Parent or Merger Sub of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, Merger Sub shall, in accordance with the terms of the Offer, promptly after the expiration of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause Merger Sub to accept for payment and to pay for any for, all shares of Company Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered and not withdrawn pursuant to the Offer (subject to the applicable provisions of Rule 14d-l 1 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Each of Parent and Merger Sub agrees that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that Merger Sub's obligation to purchase shares of Company Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) Business Days following the commencement of the Offer (the "INITIAL EXPIRATION DATE"). Parent and Merger Sub shall have the right to extend the Offer for one ten Business Day period for any reason in their sole discretion. The latest time and date at which the Offer, as may be extended beyond the Initial Expiration Date as permitted or required by this Section 1.1(a), shall expire shall not be later than the Outside Date (except as may otherwise be required by rule, regulation, interpretation, or position of the SEC or its staff) and is herein referred to as the "EXPIRATION DATE.
(b) Parent on behalf of " Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer; provided, that except that, without the prior written consent of the CompanyCompany (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither Parent nor Merger Sub shall not (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Per Share Amount or Offer Price, (iii) change the form of consideration payable in the Offer (other than by adding consideration)Offer, (iiiv) decrease the number of shares of Company Common Stock to be purchased sought in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (ivv) impose additional conditions to the Offer or modify Offer, (vi) amend any of the conditions to the Offer set forth in a Annex I in any manner adverse to the holders of the shares of Company Common Stock, (vvii) make amend any change in other term of the Offer in a manner that would require an extension or delay is adverse to the holders of the then current shares of Company Common Stock, or (viii) extend the Offer except as expressly permitted or required by this Section 1.1(a). Each of Patent and Merger Sub agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date; provided, however, that this clause (v) the Minimum Condition shall not limit have been satisfied or the other conditions to the Offer described in Annex I shall not have been satisfied or earlier waived. Notwithstanding the foregoing:
(1) without limiting the right of Parent and Merger Sub to extend the Expiration Date Offer as required or permitted by this Section 1.1(d1.1(a), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings provided that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub Agreement shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement have been terminated in accordance with Section 7.1 6.1 hereof. Notwithstanding , at the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent request of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Datewill, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall will cause Merger Sub to, and Merger Sub shallextend the Offer for one or more periods of ten (10) Business Days each, (i) as soon as practicable after but in no event beyond the Expiration Outside Date, accept for payment and pay for all shares of Common Stock validly tendered and if the conditions set forth in Annex I hereto are not properly withdrawn pursuant satisfied or, to the Offer (the date of acceptance for paymentextent permitted by this Agreement, the “Acceptance Date”), which acceptance may be by oral notice waived at or prior to the Paying Agenttime the Offer otherwise would expire, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant except to the Offerextent any such conditions that have not been waived are incapable of being satisfied.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within Provided that this Agreement shall not have been terminated pursuant to Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) use its reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer within three (3) Business Days (and shall commence such Offer in any event within ten business days (10) Business Days) of the date of this Agreement.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not validly withdrawn prior to any then scheduled Expiration Time that number of shares of Company Common Stock which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the Fully Diluted Shares as of immediately prior to the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 1.01) (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit A, as such term is defined conditions may be modified in Rule 14d-1(g)(3) promulgated under accordance with this Agreement (together with the Exchange ActMinimum Condition, the “Business DaysOffer Conditions”) after ). For purposes of determining whether the date hereofMinimum Condition has been satisfied, any shares tendered in the Offer pursuant to guaranteed delivery procedures shall be included only if such shares have been delivered pursuant to such procedures. Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of consummate the Offer but after affording the Company and in accordance with its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, payment and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Time. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not validly withdrawn on pursuant to the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered Offer shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be paid net to the seller in cash, without interest, interest (subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered tax pursuant to Section 3.05), on the Offerterms and subject to the conditions set forth in this Agreement.
(bc) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions. Parent on behalf of and Merger Sub expressly reserves reserve the right from time (in their sole discretion) to time, subject to Section 1.1(c) and Section 1.1(d)waive, in its sole discretionwhole or in part, to waive any Tender Offer Condition, to increase the Per Share Amount Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that without the prior written consent of unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not (i) decrease reduce the Per Share Amount number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend change, modify or waive satisfaction of the Minimum Condition (as defined in Annex B)Condition, (iv) impose additional conditions add to the Offer conditions set forth in Exhibit A or modify or change any conditions to the Offer Condition in a any manner adverse to any shareholders of the holders of shares of Common StockCompany, (v) make except as otherwise provided in this Section 1.01, extend or otherwise change the expiration date of the Offer or (vi) otherwise amend, modify or supplement any change of the other terms of the Offer in any manner adverse to any shareholder of the Company.
(d) Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer that would require an extension has been so extended (the Initial Expiration Time, or delay such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with its terms, Merger Sub shall, and Parent shall cause Merger Sub to, (i) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties hereto may agree) each, if on any then-scheduled Expiration Time any of the then current Expiration DateOffer Conditions (other than the Minimum Condition) shall not be satisfied or waived, until such time as such condition or conditions are satisfied or waived; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (vi) shall not limit the right of Parent and Merger Sub to be twenty (20) Business Days, (ii) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days each, if on any then-scheduled Expiration Date as required Time each Offer Condition (other than the Minimum Condition) shall have been satisfied or permitted by Section 1.1(d)waived, and the Minimum Condition shall not have been satisfied; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (ii) shall be twenty (20) Business Days, (viiii) modify or amend extend the Tender Offer, at the request of the Company, until the expiration of a twenty (20)-day cure period after a breach of this Agreement by the Company, if on any then-scheduled Expiration Time any of the Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) shall not be satisfied due to a breach of this Agreement by the Company that is capable of being cured (it being understood that a willful failure to comply with Section 6.04 in any material respect shall be deemed incapable of being cured), and (iv) extend the Offer for the minimum period required by applicable Law, any interpretation or position of the Securities and Exchange Commission (the “SEC”), the staff thereof, the NASDAQ Stock Market (“NASDAQ”) or the Chicago Stock Exchange, Inc. applicable to the Offer, and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event (A) shall Merger Sub be required to extend the Offer beyond November 1, 2012 (the “Outside Date”) or (viiB) modify shall this Section 1.01(e) be construed or amend deemed to impair, limit or otherwise restrict in any other term manner the right of the parties to terminate this Agreement pursuant to Article VIII. Merger Sub expressly reserves the right to, in its sole discretion, following the Offer Closing, make available one (1) or more “subsequent offering periods” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents may, in Merger Sub's sole discretion, provide for such a reservation of right. Except as otherwise expressly provided in this Section 1.01(e), the rights of Company to cause an extension of the Offer are cumulative so that, if at any time any of the foregoing is applicable, the Offer will be so extended further.
(f) On the terms and subject to the satisfaction or waiver by Merger Sub of the Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay the Offer Price (subject to any withholding of tax pursuant to Section 3.05) pursuant to Section 1.01(b) for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub's obligations under this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.”
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Article VIII. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated pursuant to Article VIII, prior to the acceptance for payment of the Company Common Stock tendered in the Offer, Merger Sub shall promptly return (and in any event within three (3) Business Days), and shall cause any depository acting on behalf of Merger Sub to promptly return, all tendered Company Common Stock to the registered holders thereof.
(h) As soon as practicable on the date of the commencement of the Offer, in Parent and Merger Sub shall file with the case of clauses (vi) and (vii), in any manner adverse SEC a Tender Offer Statement on Schedule TO with respect to the holders Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of shares letter of Common Stock transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements thereto, the “Offer Documents”). The Company shall promptly furnish to Parent and Merger Sub in their capacities as holders of shares of Common Stock.
(c) No agreement writing all information concerning the Company and its Subsidiaries that may be required by applicable Laws or representation hereby is made or shall be made reasonably requested by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, in the Offer Documents. Parent, Parent and Merger Sub shall take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to the shareholders of the Company, in each case as and to the extent required by the Exchange Act. Parent and Merger Sub, on the one hand, and the Company each agrees Company, on the other hand, shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Sub shall take all steps necessary to cause the Schedule TOOffer Documents, as so corrected or supplementedcorrected, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the shareholders of the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, relating to the Offer Documents. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment on any such Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. response, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECsuch comments.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in clause (III)(a) through (i), inclusive, of the Tender Offer Conditions, shall have occurred, as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) promptly as reasonably practicable after the date hereofof this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) Purchaser to commence (within the meaning of Rule 14d-2 promulgated under of the Exchange Act) an offer to purchase all outstanding shares of (i) Seller Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such priceOffer Price, or any higher price per share of Common Stock paid by Merger Sub pursuant net to the terms of Seller Common Stockholders in cash and (ii) Seller Series A Convertible Preferred Stock at the OfferPreferred Stock Offer Price, net to the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, Seller Preferred Stockholders in each case in connection with the Offer (the “Offer Documents”)cash, and shall use its reasonable commercial efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Purchaser shall, and Parent shall cause Merger Sub Purchaser to, and Merger Sub shall, upon promptly after the expiration of the Offer, accept for payment, payment and pay for (after giving effect to any required withholding or stock transfer Tax)for, all such shares of Seller Common Stock and Seller Series A Convertible Preferred Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offerwithdrawn.
(b) Parent on behalf of Merger Sub Purchaser expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d)right, in its sole discretion, to waive waive, in whole or in part, any Tender Offer Condition, to increase the Per Share Amount Condition or to make any other changes in modify the terms and conditions of the Offer; provided, however, that without the prior written consent of the CompanySeller, Merger Sub Purchaser shall not (i) decrease the Per Share Amount Offer Price or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) waive or amend or waive satisfaction of the Minimum Condition (as defined in Annex BI hereto), (iv) decrease the number of shares of Seller Common Stock or Seller Preferred Stock sought to be purchased in the Offer, impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), Offer in any manner adverse to the holders of shares of Seller Common Stock in their capacities as holders of shares of Common or Seller Preferred Stock.
(c) No agreement or representation hereby is made or . The Offer shall be made by Parent or Merger Sub with respect to information supplied by remain open until the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings date that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents twenty (including each amendment or supplement thereto20) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly Business Days after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and pursuant to Rule 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, (the “Expiration Date”). Merger Sub , unless Purchaser shall not terminate or withdraw have extended the period of time for which the Offer other than is open pursuant to, and in connection with accordance with, the effective termination succeeding sentence or as may be required by applicable Laws or interpretations or positions of this Agreement the Securities and Exchange Commission or its staff (the “SEC”), in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that Purchaser may, in its sole discretion, provide a subsequent offering period after the Expiration Date, in accordance with Section 7.1 hereofRule 14d-11 under the Exchange Act. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, If on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by ParentPurchaser, for such periods of up Purchaser may extend the Offer from time to ten Business Days at a time through the Outside Date (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided defined in Section 1.1(d)(iii9.1(c) below); provided, however, that, on such Expiration Date (i) if the waiting period under the HSR Act or as required by the rules and under any material applicable foreign statutes or regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in or the Per Share Amount)Merger shall not have expired or been terminated, in no event may Purchaser shall extend the Expiration Date be extended pursuant Offer from time to this clause time until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations or (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of if any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied set forth in paragraph III(a) of Annex I hereto shall have occurred and be continuing, Purchaser shall extend the Offer from time to time in consecutive increments of up to five (5) Business Days each until the time such condition or waived conditions shall no longer exist or any of the matters described in such paragraph III(a) shall have become final and it is permitted under applicable Law non-appealable; provided further, however that Purchaser shall in no event be required to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawnextend the Offer beyond the Outside Date. Nothing contained in this Section 1.1(d) paragraph shall affect any termination rights in ARTICLE SEVENArticle IX.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement has not been validly terminated in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereofaccordance with Section 8 of this Agreement, Merger Sub shallwill, and Parent shall will cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act) an offer to purchase all outstanding shares Act of Common Stock of 1934, as amended (together with the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offerrules and regulations promulgated thereunder, the “Per Share AmountExchange Act”)), the Offer no later than the tenth (10th) and shall, on business day following the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereofthis Agreement. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock Shares validly tendered shall and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with this Section 1.1(a)) will be subject solely only to the conditions set forth in Annex II (each such condition, an “Offer Condition”). Subject to the prior satisfaction or waiver by Parent and Merger Sub of the Tender Offer Conditions, Merger Sub will consummate the Offer in accordance with the terms of such Offer, and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment in accordance with the Offer. The Offer will be made by an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of and Merger Sub expressly reserves shall cause the Acceptance Time to be 12:01 AM ET on the business day that immediately follows the Expiration Date. Parent and Merger Sub reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Conditionof such conditions, to increase the Per Share Amount or Offer Price and to make any other changes in the terms Offer. Merger Sub will not, and conditions Parent will cause Merger Sub not to, decrease the Offer Price, change the form of consideration payable in the Offer; provided, that decrease the number of Shares sought in the Offer, amend, modify or waive the Minimum Condition, impose additional conditions to, or amend, modify or waive the conditions in a manner adverse to any holder of Shares, or provide for a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act, except as set forth below, in each case, without the prior written consent of the Company. Notwithstanding anything to the contrary contained in this Agreement, but subject to the parties’ respective termination rights under Section 8:
(i) Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in extend the Offer (other than A) for any extension period required by adding considerationany rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”), its staff or the New York Stock Exchange (ii) decrease the number of shares of Common “NYSE”), the Nasdaq Stock to be purchased in the OfferMarket or their respective staffs, (iiiB) amend for one or waive satisfaction more extension periods of up to ten (10) business days per extension period (or a longer extension period approved by the Company), if, as of the Minimum Condition applicable Expiration Date, either (as defined in Annex B), I) any waiting period (ivand any extensions thereof) impose additional conditions or any approvals or clearances applicable to the Offer or modify the consummation of the Merger in accordance with the HSR Act have not expired, been terminated or been obtained, as applicable or (II) any conditions to of the Offer Conditions set forth in a manner adverse Section 1 or Section 2 of Annex II hereof is not satisfied; and (C) for up to two (2) successive extension periods of ten (10) business days per extension period, if, at the holders of shares of Common Stockapplicable Expiration Date, (vI) make any change in there has not been a Company Adverse Recommendation Change, (II) each Offer Condition other than the Minimum Condition is capable of being satisfied, and (III) the Minimum Condition is not satisfied; and
(ii) Merger Sub, without the consent of the Company, may extend the Offer that would require an if, as of any Expiration Date, any Offer Condition is not satisfied and has not been irrevocably waived by Parent and Merger Sub in writing, for additional periods of up to ten (10) business days per extension period (or delay a longer extension period as may be approved in advance by the Company), to permit all of the then current Expiration DateOffer Conditions to be satisfied; provided, however, that in no event will Merger Sub be required to extend the Offer beyond the valid termination of this clause Agreement in compliance with Section 8. Merger Sub will not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 8. In addition, in the event this Agreement is terminated in accordance with the terms of Section 8, Merger Sub will at such time irrevocably and unconditionally terminate the Offer.
(vb) shall not limit On the right date of commencement of the Offer, Parent and Merger Sub to extend will file with the Expiration Date as required or permitted by Section 1.1(d)SEC, (vi) modify or amend in accordance with Regulation M-A promulgated under the Exchange Act, a Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub Statement on Schedule TO with respect to information supplied by the Company expressly for inclusion inOffer (together with all amendments, or with respect to Company information derived from supplements and exhibits thereto, the Company SEC Filings that is included or incorporated by reference in“Schedule TO”). The Schedule TO will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and all information required by applicable Law (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referenced in Section 3.3(b). Subject to the Company’s compliance in all material respects with Section 1.2(c), Parent and Merger Sub will take all actions necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by Law. Parent, Merger Sub on the one hand, and the Company each agrees Company, on the other hand, will promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall such information will have become false or misleading in any material respectrespect or as otherwise required by Law. Parent and Merger Sub shall will take all actions necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to holders of the Company’s stockholdersShares, in each case case, as and to the extent required by applicable Federal securities LawsLaw. The Company and its counsel shall will be given a reasonable opportunity to review and comment on the Schedule TO and any Offer Documents (including each amendment or supplement thereto) thereto before they are it is filed with the SEC. , and Parent and Merger Sub shall give reasonable and will consider any such comments in good faith consideration to any comments or other additionsfaith. In addition, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall will provide the Company with (in writingany comments, if written), and shall consult with the Company regarding, any comments (whether written or oral) , that may be received by Parent, Merger Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents Documents, promptly after receipt thereof. The of such comments, and any written or oral responses thereto, and the Company will have the right to consult with Parent, Merger Sub and its their counsel shall be given a reasonable opportunity prior to review and comment upon responding to any proposed responses before they are filed with the SECsuch comments, either in written or oral form.
(dc) The initial expiration date Subject to the terms and conditions of the Offer shall be at midnightthis Agreement, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 12:00 midnight Eastern Time on the twentieth (20th) business day (calculated in accordance with Rule 14d-1(g)(3) and 14d-2 under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”) or, if the Offer has been extended in accordance with this Agreement, at the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”). .
(d) Parent will provide, or cause to be provided, to Merger Sub shall promptly following the Acceptance Time, all funds necessary to pay the aggregate Offer Price with respect to Shares that have been validly tendered and not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement withdrawn in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Offer and that Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law obligated to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions and permitted to accept for payment in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the OfferLaw.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Invuity, Inc.)
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement shall not have been terminated in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, accordance with Section 8.1 and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock none of the Company at the purchase price events or conditions set forth in subparagraphs (a) through (e) of $16.00 per share Annex I shall have occurred and be continuing and not have been waived by Parent or Merger Sub, as promptly as reasonably practicable and, in any event, within five (5) Business Days of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of this Agreement, Parent and Merger Sub shall amend the Pending Offer but after affording to reflect the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions execution of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Dateterms hereof. The obligation obligations of Merger Sub to accept for payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for) any shares of Company Common Stock validly tendered on or prior to the expiration of the Offer and not properly withdrawn shall be subject solely to (i) there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the expiration of the Offer that number of shares of Company Common Stock which represents a majority of the shares of Company Common Stock outstanding on a fully-diluted basis, including after giving effect to the issuances of shares of Company Common Stock pursuant to Section 2.12 (the “Minimum Condition”), and (ii) the other conditions set forth in Annex I. Subject to the prior satisfaction or waiver (subject to the provisions of this Agreement) by Merger Sub of the Tender conditions of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to), in accordance with the terms of the Offer, consummate the Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction and accept for any applicable withholding or stock transfer Taxes payable by such seller. No payment and pay for all shares of Company Common Stock held by (the Company or its Subsidiaries shall be time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer promptly after expiration of the Offer.
, which shall initially be the later of the expiration date of the Pending Offer as of the date of this Agreement or the date that is fifteen (b15) Parent Business Days after the date of this Agreement; provided, however, that (x) if on behalf the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as extended in accordance with this Agreement), all conditions to the Offer shall not have been satisfied or waived, Merger Sub may, from time to time, in its sole discretion, extend the Offer for such period as Merger Sub may determine, (y) Merger Sub may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC (or the staff thereof) or the NYSE applicable to the Offer and (z) Merger Sub may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act; provided that, in no event shall the Offer extend beyond the Walk-Away Date without the mutual written consent of the Company and Parent. Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, time to waive any Tender Offer of the conditions set forth in Annex I (other than the Minimum Condition, the Registration Condition and the Listing Condition) or to increase the Per Share Amount Offer Price or to make any other changes in the terms and conditions of the Offer; providedprovided that, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or Offer Price, change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to Offer, reduce the time period during which the Offer in a manner adverse to the holders of shares of Common Stockshall remain open or, (v) make except for any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d)hereunder, (vi) modify or amend extend the Tender Offer Conditions (other than to waive such Tender Offer ConditionsOffer, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), Offer in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Company Common Stock.
(cb) No agreement Subject to the first sentence of Section 2.1(a), as promptly as reasonably practicable and, in any event, within five (5) Business Days of the date of this Agreement, in order to reflect the execution of this Agreement and the terms hereof, Parent shall file or representation hereby is made cause to be filed with the SEC (i) an amendment to Parent’s registration statement on Form S-4 (as it may be amended or shall be made by Parent or supplemented, the “Form S-4”) and (ii) an amendment to Parent’s and Merger Sub Sub’s tender offer statement on Schedule TO, as amended, each originally filed on March 5, 2010 with respect to information supplied by the Company expressly for inclusion inPending Offer (such schedule together with the Form S-4, or with respect and the documents included therein pursuant to Company information derived from which the Company SEC Filings that Offer is included or incorporated by reference inmade, and any amendments and supplements thereto, the “Offer Documents”). ParentParent shall use commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing. Subject to the Company’s compliance with Section 2.2(c), Parent and Merger Sub shall cause the Offer Documents to be disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. Parent and Merger Sub, on the one hand, and the Company each agrees Company, on the other hand, agree to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respectrespect or as otherwise required by Law. Parent and Merger Sub shall further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case holders of shares of Company Common Stock as and to the extent required by applicable Federal U.S. federal securities Laws. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 2.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additionsIn addition, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company and its counsel with (in writing, if written), and shall consult with the Company regarding, i) any comments (or communications, whether written or oral) , that may be received by Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Merger Sub’s, as the case may be, receipt thereof. The Company of such comments, and its counsel shall be given (ii) a reasonable opportunity to review participate in the response of Parent or Merger Sub to those comments and comment upon to provide comments on that response.
(c) In the event this Agreement is terminated pursuant to Section 8.1 prior to the Acceptance Time, Parent and Merger Sub shall promptly terminate the Offer without accepting any proposed responses before they are filed with the SECshares of Company Common Stock previously tendered.
(d) The initial expiration date No certificates or scrip representing fractional shares of Parent Common Stock shall be issued by virtue of the Offer Offer, no dividends or other distributions of Parent shall relate to such fractional share interests and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a stockholder of Parent. In lieu of such fractional share interests, Parent shall pay to each holder of shares of Company Common Stock who would otherwise be at midnightentitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) an amount in cash equal to the product obtained by multiplying (i) the fractional share interest to which such holder would otherwise be entitled by (ii) the average closing sales price, rounded to four decimal points, of shares of Parent Common Stock on the NYSE (as reported in the Wall Street Journal, New York City time, edition) for the period of the five (5) consecutive trading days ending on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days second full trading day prior to the Outside Date, Acceptance Time (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises “Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance DateCash Value”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days Provided that the Company shall have complied with its applicable obligations under Section 1.2 (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Actother than clause (e)), “Business Days”) after the date hereof, Merger Sub shall, and Parent shall use its reasonable best efforts to cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) to commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer the Offer at the Offer Price no later than March 24, 2008 (and in any event as promptly as practicable after the date hereof). For the avoidance of doubt, Parent may consummate the Offer through Merger Sub, its indirect wholly-owned Subsidiary.
(b) The obligation of Merger Sub (and Parent’s obligation to purchase all outstanding cause Merger Sub) to accept for exchange, and exchange the Offer Price for, any shares of Company Common Stock tendered 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 (other than shares of Company at Common Stock tendered by guaranteed delivery where actual delivery has not occurred), prior to the purchase price scheduled expiration of $16.00 per share the Offer (as it may be extended hereunder) and not withdrawn, a number of shares of Company Common Stock that, together with any shares of Company Common Stock then directly or indirectly owned by Merger Sub, represents more than 9,600,000 shares of Company Common Stock (the “Minimum Condition”) and (ii) the other conditions set forth in Annex B (the Minimum Condition and such priceother conditions collectively referred to herein as the “Offer Conditions”). Parent, or any higher price per share of Common Stock paid by US Corp. and Merger Sub pursuant expressly reserve the right in their sole and absolute discretion to waive any of the Offer Conditions and to modify the terms of the Offer; provided, that unless previously approved in writing by the Company in the Company’s sole and absolute discretion, (i) the Minimum Condition may not be amended nor may it be waived if such waiver would result in Merger Sub purchasing less than a majority of the outstanding shares of Company Common Stock (for purposes of this clause (i) treating each share of the Company’s Series A 7% Convertible Preferred Stock, par value $0.10 per share (“Company Convertible Preferred Stock” and, together with the Company Common Stock, the “Per Share AmountCompany Stock”), as having been converted into a share of Company Common Stock pursuant to the Certificate of Designations), (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer or reduces the ratio of cash to Parent Common Stock, decreases the Offer Price or the number of shares of Company Common Stock sought in the Offer, amends or adds to the Offer Conditions, or otherwise modifies the Offer in any manner adverse to the stockholders of the Company, and shall(iii) except as set forth in Section 1.1(c), the Offer may not be extended nor may any change be made to the Offer that would require an extension of or delay in the then current expiration date of the Offer. Holders of shares of Company Common Stock will not be able to tender such shares by guaranteed delivery unless Merger Sub otherwise elects in its sole and absolute discretion to permit guaranteed delivery. For purposes of this Agreement, including for purposes of determining whether the Minimum Condition has been met, the shares of Company Common Stock issuable upon conversion of the Company Convertible Preferred Stock shall be deemed to have been validly tendered in the Offer and not withdrawn if the Tender Documents referred to in Section 2.1 of each of the Stockholder Agreements are delivered to the depositary for the Offer in accordance with such Section 2.1 and not withdrawn.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 10:00 a.m., New York City time, on the twenty-first (21st) business day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Offer Period”). Subject to the provisions of Section 1.5, and subject to the parties’ respective termination rights under Section 9 (if applicable), (i) if, at the scheduled or extended expiration date of commencement the Offer, any Offer Condition has not been satisfied in Parent’s reasonable discretion or waived (if such waiver is permitted hereunder), Merger Sub shall extend the Offer until the earlier to occur of (x) the satisfaction or waiver of all of the Offer but after affording Conditions and (y) the Company End Date, and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to (ii) Merger Sub shall extend the Offer for any comments made therebyperiod required by any rule, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements theretoregulation, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with interpretation or position of the Securities and Exchange Commission (the “SEC”) and cause such documents or its staff or the Nasdaq Market (including any successor exchange, “Nasdaq”) applicable to be disseminated to holders of shares of Common Stock, as the Offer or any period required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereofapplicable Law. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon Following the expiration of the Offer, Merger Sub may elect to provide one or more subsequent offering periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act and in compliance with all other provisions of applicable Law. Subject to the foregoing, including the requirements of Rule 14d-11 of the Exchange Act, and upon the terms and subject to the conditions of the Offer, Merger Sub shall as promptly as practicable following expiration of the Offer accept for payment and pay for all shares of Company Common Stock (A) validly tendered and not withdrawn pursuant to the Offer and/or (B) validly tendered in any such Subsequent Offering Period. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash and shares of Parent Common Stock, subject to reduction for any applicable withholding Taxes.
(d) Subject to the foregoing and applicable Law and upon the terms of and subject to the conditions of the Offer, Merger Sub shall accept for payment, as promptly as permitted under applicable securities Law, and pay for (after giving effect to any required withholding Tax), as promptly as practicable after the date on which Merger Sub first accepts shares of Company Common Stock for payment pursuant to the Offer (the date and time of such first acceptance, regardless of whether Parent and Merger Sub elect to provide for one or stock transfer Taxmore Subsequent Offering Periods pursuant to Rule 14d-11 of the Exchange Act, the “Acceptance Date”), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer Offer.
(e) No fraction of a share of Parent Common Stock shall be issued in connection with the Offer, no dividends or other distributions with respect to Parent Common Stock shall be payable on or with respect to any such fractional share interest and such fractional share interests shall not validly withdrawn entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu thereof, each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would have been received by such stockholder) shall, upon surrender of his or her Certificate or Certificates or Book-Entry Shares (each as defined below), be entitled to receive an amount of cash (without interest) rounded to the nearest whole cent determined by multiplying (i) the closing price of a share of Parent Common Stock as reported on the Nasdaq on the Acceptance DateDate by (ii) the fractional share interest to which such holder would otherwise be entitled. The obligation parties acknowledge that payment of Merger Sub to accept the cash consideration in lieu of issuing fractional shares was not separately bargained for payment consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and to pay for any accounting complexities that would otherwise be caused by the issuance of fractional shares.
(f) The Company agrees that no shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Company Common Stock held by the Company or any of its Subsidiaries shall will be tendered pursuant to the Offer.
(bg) Parent on behalf On the date of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions commencement of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend shall file with the Expiration Date as required or permitted by Section 1.1(d), SEC (vii) modify or amend the a Tender Offer Conditions Statement on Schedule TO with respect to the Offer (other than together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall contain the Preliminary Prospectus, an offer to waive such Tender Offer Conditionsexchange, except for the Minimum Condition) or (vii) modify or amend any other term a form of related letter of transmittal and summary advertisement in respect of the OfferOffer (collectively, in together with any amendments or supplements thereto, the case of clauses (viRegistration Statement and such other ancillary documents as may be required, the “Offer Documents”) and (vii), in any manner adverse ii) a registration statement on Form F-4 (or Form S-4) to register the offer and sale of Parent Common Stock pursuant to the holders Offer and the Merger (the “Registration Statement”). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) of shares of Common Stock in their capacities the Exchange Act (the “Preliminary Prospectus”). Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to the Company’s stockholders as holders of shares of Common Stock.
(c) No agreement and to the extent required by applicable federal securities Laws. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company, its directors, officers and affiliates as may be required by applicable securities Law or representation hereby is made or shall be made reasonably requested by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from in the Company SEC Filings that is included or incorporated by reference inSchedule TO, the Registration Statement or the other Offer Documents. Parent and Merger Sub shall use their reasonable best efforts to cause the Schedule TO, the Registration Statement and the other Offer Documents to comply in all material respects with applicable securities laws and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after it is filed with the SEC and to keep the Registration Statement effective as long as necessary to complete the Offer and the Merger. Following the time the Registration Statement is declared effective, Parent shall file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO, the Registration Statement and the other Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. Parent and Merger Sub shall agree to take all steps necessary to cause the Schedule TO, TO and the Registration Statement as so corrected or supplemented, to be filed with the SEC and the Offer Documents, Documents as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case case, as and to the extent required by applicable Federal federal securities LawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Schedule TO, the Registration Statement and the other Offer Documents (including each amendment or supplement thereto) time before they are any such document is filed with the SEC. SEC or disseminated to the Company’s stockholders, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documentscounsel. Parent and Merger Sub shall provide the Company and its counsel with (in writing, if written), and shall consult with the Company regarding, i) any comments (or other communications, whether written or oral) , that may be received by Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO, the Registration Statement or the other Offer Documents promptly after receipt thereof. The Company of such comments or other communications, and its counsel shall be given (ii) a reasonable opportunity to review provide comments on that response (to which reasonable and comment upon any proposed responses before they are filed with the SECgood faith consideration shall be given).
(dh) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent and/or US Corp. shall provide or cause to be provided to Merger Sub on a timely basis the funds and shares of Parent Common Stock necessary to purchase accept for payment, and pay for, any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(gi) Promptly after If, between the Acceptance Datedate hereof and the date on which any share of Company Common Stock is accepted for payment and paid for pursuant to the Offer, the outstanding shares of Company Stock are changed (or a record date for such change occurs) into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall take all action requested be appropriately and proportionately adjusted, taking into account the record and payment or effective dates, as the case may be, for such transaction.
(j) If, between the date hereof and the date on which any share of Company Common Stock is accepted for payment and paid for pursuant to the Offer, the outstanding shares of Parent Common Stock are changed (or a record date for such change occurs) into a different number or class of shares by Parent necessary reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall be appropriately and proportionately adjusted, taking into account the record and payment or effective dates, as the case may be, for such transaction.
(k) Subject to elect Section 1.5, unless this Agreement is terminated pursuant to be treated as a “controlled company” as defined by Section 801(a) 9, Merger Sub shall not terminate or withdraw the Offer prior to any scheduled expiration date without the prior written consent of the NYSE AMEX Company Guide in its sole and make absolute discretion, except that in the event this Agreement is terminated pursuant to Section 9, Merger Sub shall promptly (and in any necessary filings event within twenty-four (24) hours) following such termination irrevocably and disclosures associated unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer is terminated in accordance with such statusthis Agreement prior to the purchase of shares of Company Common Stock in the Offer, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered shares of Company Stock to the tendering stockholders.
Appears in 1 contract
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article 7, as promptly as practicable (as such term is defined but in no event later than February 12, 2024), Merger Sub shall (and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d-1(g)(3) promulgated 14d-2 under the Exchange Act, “Business Days”the Offer to purchase for cash any and all Company Shares (other than Company Shares to be cancelled in accordance with Section 2.1(b)) after at the date hereof, Offer Price. Merger Sub shall, and Parent shall cause Merger Sub to, (irrevocably accept for purchase, purchase and the pay for all Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub Shares validly tendered and not properly withdrawn pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject only to: (a) there being validly tendered in the Offer (in the aggregate) and not properly withdrawn prior to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects Expiration Date that number of Company Shares that, considered together with the provisions number of all applicable Federal securities Laws. Subject Company Shares (if any) then owned by Parent and Merger Sub (and excluding Company Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), equals at least a majority in voting power of the Company Shares then issued and outstanding as of the Expiration Date (the “Minimum Condition”); (b) the Merger Agreement not having been terminated in accordance with its terms (the “Termination Condition”); and conditions of this Agreement and to (c) the satisfaction satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex B hereto I (together with the Minimum Condition and the Termination Condition, the “Tender Offer Conditions”).
(b) On or prior to the date that Merger Sub becomes obligated to pay for Company Shares pursuant to the Offer, Parent shall provide or cause to be provided to Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, on a timely basis funds sufficient to purchase and pay for any and all Company Shares that Merger Sub shall become obligated to accept for purchase pursuant to the Offer. Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by M▇▇▇▇▇ Sub, of the other Tender Offer Conditions, Merger Sub shall accept for purchase (after giving effect to any required withholding or stock transfer Tax)the time of such acceptance, the “Acceptance Time”) and pay for all shares of Common Stock Company Shares validly tendered and not properly withdrawn pursuant to the Offer and not validly withdrawn on as soon as practicable following the Acceptance Expiration Date, and, in any event, no more than three Business Days after the Expiration Date. The obligation Offer Price payable in respect of Merger Sub to accept for payment and to pay for any shares of Common Stock each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net paid to the seller in cash, without interest, subject to reduction for any withholding of Taxes required by applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by Law, on the Company or its Subsidiaries shall be tendered pursuant terms and subject to the Offerconditions set forth in this Agreement.
(bc) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with applicable Law and this Agreement, including the Tender Offer Conditions. To the extent permitted by applicable Law, Parent on behalf of and Merger Sub expressly reserves reserve the right to, at any time and from time to time, subject waive or modify any of the conditions to Section 1.1(c) and Section 1.1(d)the Offer, in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount Offer Price, or to make any other changes in the terms and conditions of the Offer; provided, however, that without except with the prior written consent approval of the Company, Merger Sub shall not (i) decrease the Per Share Amount or Offer Price, (ii) change the form of consideration payable in the Offer (other than by adding considerationprovided that nothing herein shall limit the ability of Parent and Merger Sub to increase the cash consideration payable in the Offer), (iiiii) decrease reduce the maximum number of shares of Common Stock Company Shares sought to be purchased in the Offer, (iiiiv) amend amend, modify or waive satisfaction of the Minimum Condition (as defined in Annex B)or the Termination Condition, (ivv) impose additional amend any of the other conditions to the Offer or modify any conditions to the Offer set forth in Annex I in a manner adverse to the holders of shares of Common StockCompany Shares, (vvi) make any change in impose conditions to the Offer that would require an extension are in addition to the Tender Offer Conditions, (vii) except as provided in Sections 1.1(e) and 1.1(f), terminate, accelerate or delay otherwise modify or amend the Offer to accelerate the Expiration Date, or (viii) otherwise modify or amend any of the then current other terms of the Offer in a manner adverse in any material respect to the holders of Company Shares.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 12:00 midnight (Delaware time) on the date that is 20 Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on any then scheduled Expiration Date, any of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for one or more successive extension periods of up to ten Business Days each in order to permit the satisfaction or waiver of such conditions; provided, however, that this clause (v) Merger Sub shall not limit be required (and Parent shall not be required to cause Merger Sub) to extend the right Offer (i) beyond the Outside Date or (ii) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Article 7. The “Outside Date” shall be May 31, 2024. In addition, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff.
(f) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement has been terminated in accordance with Article 7. If this Agreement is terminated in accordance with Article 7 prior to any scheduled Expiration Date, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within 72 hours following such termination), irrevocably and unconditionally terminate the Offer and shall not acquire any Company Shares pursuant thereto. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, Merger Sub shall (and Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Company Shares to the registered holders thereof and Merger Sub shall not (and Parent shall cause Merger Sub not to) accept any Company Shares pursuant to the Offer.
(g) As soon as practicable on the date of the commencement of the Offer, but in no event more than ten Business Days after the date hereof, Parent and Merger Sub to extend shall file with the Expiration Date as required or permitted by Section 1.1(d)SEC, (vi) modify or amend in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub Statement on Schedule TO with respect to information supplied by the Company expressly for inclusion inOffer (together with all amendments, or with respect to Company information derived from supplements and exhibits thereto, the Company SEC Filings that is included or incorporated by reference in“Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments, supplements and exhibits thereto, the “Offer Documents”). Parent, Parent and Merger Sub shall cause the Offer Documents to be disseminated to holders of Company Shares as and to the extent required by federal securities Laws, including the Exchange Act. Parent and Merger Sub, on the one hand, and the Company each agrees Company, on the other hand, shall promptly to notify the other party and correct any information provided by it for use in the Offer Documents Documents, if and to the extent that it shall have become false or misleading in any material respect. Parent respect or as otherwise required by applicable Law, and Merger Sub shall cause the Schedule TOOffer Documents, as so corrected or supplementedcorrected, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case holders of Company Shares as and to the extent required by applicable Federal securities Lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. , and Parent and Merger Sub shall give reasonable and good faith due consideration to any comments or other additions, deletions or changes made suggested thereto by the Company and its counsel with respect to any Offer Documentscounsel. In addition, Parent and Merger Sub shall provide the Company and its counsel with (in writing, if written)copies of any written comments, and shall consult with the Company regardinga written summary of any oral comments, any comments (written or oral) that may be received by Parent, Parent and Merger Sub or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt thereofof such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such responses, and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) Parent and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate give due consideration to the reasonable additions, deletions or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required changes suggested thereto by the rules Company and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENcounsel.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. The Merger Agreement requires that no later than ten (a10) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning public announcement of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the OfferMerger Agreement, the “Per Share Amount”(i) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, Purchaser must file a Purchaser's Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities Commission and Exchange Commission (commence the “SEC”) Offer in accordance with the requirements of Regulations 14D and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 14E promulgated under the Exchange Act, in each case in connection Act and (ii) the Company must file with the Offer (Commission the “Offer Documents”), and shall consummate Company's Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer, subject which accompanies this Offer to Purchase and contains the terms and conditions hereof and thereofrecommendation of the Company's Board of Directors that holders of Shares accept the Offer. The Purchaser Group and the Company have each agreed to use their respective reasonable best efforts to cause all the Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject Conditions to the terms and conditions of this Agreement be fulfilled and to avoid the satisfaction occurrence of any event or waiver to cure any event that may prevent the Offer Conditions from being fulfilled. The obligation of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, Purchaser to accept for payment, payment and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly Shares tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be is subject solely only to the satisfaction or waiver by Merger Sub of conditions to the Tender Offer set forth in Section 13 (the "Offer Conditions"). The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without Without the prior written consent of the Company, Merger Sub shall Purchaser may not (i) decrease the Per Share Amount Offer Price or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Common Stock Shares Purchaser seeks to be purchased purchase in the Offer, (iii) amend or waive satisfaction of change the Minimum Condition (as defined in Annex B)Offer Conditions, (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common StockOffer, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), Offer in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer DocumentsShares. Parent, Merger Sub and the Company each agrees promptly to correct Purchaser may waive any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect condition to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company; provided, (i) shall extend that Purchaser may waive the Expiration Date for any period required by the rules and regulations Minimum Condition only if more than 50% of the SEC Shares are tendered in the Offer and if BNS amends or waives the NYSE AMEX (“NYSE AMEX”) applicable conditions of its Commitment Letter. Subject to the Offer, including in connection with an increase in satisfaction of all the Per Share Amount, (ii) shall extend the Expiration Date if, on Offer Conditions as of any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to Purchaser will accept for payment and pay for all Shares validly tendered shares of Common Stock that are and not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur withdrawn pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares . BOARD REPRESENTATION. Promptly upon the purchase by Purchaser of Common Stock validly tendered and not properly withdrawn Shares pursuant to the Offer (the date and from time to time thereafter, Purchaser will be entitled to designate at least a number of acceptance for paymentdirectors, the “Acceptance Date”), which acceptance may be by oral notice rounded up to the Paying Agentnext whole number, on the Company's Board of Directors equal to the product of (i) the total number of directors on the Company's Board of Directors and (ii) on Parent's and its affiliates' percentage of beneficial ownership of the Acceptance Date, deposit outstanding Shares. The Company must either increase the size of the Company's Board of Directors or cause secure the resignation of the necessary number of directors to enable Purchaser's designees to be deposited with elected to the Paying AgentCompany's Board of Directors, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all and will cause such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause designees to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant elected to the OfferCompany's Board of Directors.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within Provided that this Agreement shall not have been terminated in accordance with Article VIII and that none of the events set forth in Annex A hereto shall have occurred and be continuing, within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) Days after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Parent and Merger Sub Sub) to) , commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 8.60 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of upon commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made therebythereon, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stockmake all deliveries, as mailings and telephonic notices required by Rule 14d-4 promulgated 14d-3 under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B A hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock Shares validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock Shares validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock Shares held by the Company or its Subsidiaries shall be tendered pursuant to the Offer. For the avoidance of doubt, the parties hereto agree that Restricted Shares may be tendered in the Offer and be acquired by Parent or Merger Sub pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section Sections 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that provided that, without the prior written consent of the Company, Merger Sub shall not and Parent shall cause Merger Sub not to (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Common Stock Shares sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex BA), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common StockOffer, (v) make any change in the Offer that would require an extension or delay of the then current Expiration DateDate (other than an increase in the Per Share Amount); provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for other than the Minimum Condition) ), or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and this clause (vii), in any manner (A) adverse to the holders of shares of Common Stock Shares or (B) that would reasonably be expected to result in, individually or in their capacities as holders of shares of Common Stockthe aggregate, a Parent Material Adverse Effect.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company Company’s public SEC Filings filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent respect and Merger Sub shall shall, and Parent further agrees to cause Merger Sub to, take all steps necessary to cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) ), and shall provide any comments thereon as promptly as practicable after receipt thereof, before they are filed with the SEC. Parent and Merger Sub shall give reasonable shall, and good faith consideration Parent agrees to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and cause Merger Sub shall to, provide the Company with (in writing, if written), and shall to consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents as promptly as practicable after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review any such written and comment upon any oral comments and proposed responses before they are filed with the SECresponses.
(d) The initial expiration date of the Offer shall be at midnightthe twentieth business day (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act, New York City time, on the 20th “Business Day Day”) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not and Parent agrees that it shall cause Merger Sub to not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 8.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger SubSub may, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) NASDAQ applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, if on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of for up to ten five (5) Business Days at a time (or such other longer period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX the NASDAQ applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside End Date, and or (iii) may extend the Expiration Date beyond the Outside End Date for up to a period not to exceed the 13th period which ends on the 15th Business Day after the last to occur of any date on which that either (w) the Company shall have publicly announced the receipt of an a Company Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside End Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Company Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside End Date, (y) an Adverse the Board of Directors shall have withdrawn or adversely modified, made a public statement or taken a public position inconsistent with the Recommendation Change has occurred less than at any time within ten Business Days prior to the Outside End Date or (z) any Notice of Superior Proposal is given by the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d6.3(e) if such advisement notice is received by Parent less than ten Business Days prior to the Outside End Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock Shares that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock Shares to enable a Short-Form Merger to occur pursuant to Section 2.7 2.8 hereof, Merger Sub may (in its sole discretion), until the Outside Dateand Parent may (in its sole discretion) cause Merger Sub to, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Merger Sub shall, and Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agentdepositary engaged by Merger Sub in connection with the Offer, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock Shares and (iii) as soon as practicable following such deposit, cause the Paying Agent depositary to pay for all shares of Common Stock Shares so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under The Merger Agreement contemplates the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording to purchase all of the Company issued and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) outstanding Class A Shares and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex issued and outstanding Class B hereto (Shares for the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be Amount, net to the seller in cash, without interest, subject interest and prescribes conditions to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions consummation of the Offer; provided. The Merger Agreement provides that, that without the prior written consent of the CompanyBeringer, Merger Sub shall not (i) decrease the Per Share Amount Purchaser may not: - Decrease or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease Per Share Amount; - Decrease the number of shares of Common Stock Shares sought to be purchased in the Offer, (iii) amend ; - Amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose Condition; - Impose additional conditions to the Offer Offer; or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend - Amend any other term of the Offer, in the case of clauses (vi) and (vii), Offer in any manner adverse to the holders of shares Shares. The "Minimum Condition" requires that there shall have been validly tendered and not withdrawn prior to the Expiration Date a number of Common Stock Shares that, together with any Shares that Purchaser has the right to acquire pursuant to the Tender Agreement (excluding Shares subject to the Tender Agreement that have been validly tendered and not withdrawn prior to the Expiration Date) and any Shares then owned by ▇▇▇▇▇▇'▇ or any of its subsidiaries, constitutes at least a majority of the total voting power of the outstanding securities of Beringer entitled to vote in their capacities the election of directors or in a merger (the "Voting Securities"), calculated on a fully diluted basis on the date of purchase ("on a fully diluted basis" having the following meaning: as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inany date, the Offer Documents. Parentnumber of Voting Securities outstanding, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed together with the SEC and the Offer Documentsnumber of Voting Securities Beringer is then required to issue pursuant to obligations outstanding at that date under employee stock options, as so corrected or supplementedwarrants, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments benefit plans or other additionsrights to purchase or acquire Voting Securities, deletions assuming the absence of any vesting requirements or changes made by conditions). If, on the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect Expiration Date all conditions to the Offer Documents promptly after receipt thereofshall not have been satisfied or waived, Purchaser may (and at ▇▇▇▇▇▇▇▇'▇ request will) extend the Expiration Date from time to time for such additional periods not to exceed 30 calendar days in order to permit such conditions to be satisfied; provided, however, that the Expiration Date may not be extended beyond January 31, 2001. The Company and its counsel shall be given a reasonable opportunity Notwithstanding that all the conditions to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnighthave been satisfied, New York City time▇▇▇▇▇▇'▇ may, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such datein its sole discretion, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by up to 10 business days. In the rules event that the Minimum Condition has been satisfied and regulations all other conditions to the Offer have been satisfied or waived but less than 100% of the SEC or Class A Shares and 90% of the NYSE AMEX (“NYSE AMEX”) applicable to Class B Shares, calculated on a fully diluted basis, have been validly tendered and not withdrawn on the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules Purchaser will accept and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if purchase all of the Tender Offer Conditions are satisfied or waived Shares tendered in the initial offer period and it is permitted under applicable Law may notify stockholders of Purchaser's intent to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days Subsequent Offer Period which shall not exceed 10 business days. Purchaser will, on the terms and subject to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the prior satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after conditions of the Expiration DateOffer, accept for payment and pay for purchase all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable permissible after the Expiration Date of the Offer. ▇▇▇▇▇▇'▇ will cause Purchaser to have sufficient funds make all payments required to be made pursuant to the Offer and the Merger and ▇▇▇▇▇▇'▇ shall cause Purchaser to comply with all of its obligations under the Merger Agreement. The Company represented and warranted to ▇▇▇▇▇▇'▇ in the Merger Agreement that: - The Beringer Board, at a meeting duly called and held, unanimously (with one Beringer Board member absent): - Approved and adopted the Merger Agreement and approved the Tender Agreement and the transactions contemplated thereby, including the Offer and the Merger (such adoption and approval being sufficient to render Section 203 of the Delaware General Corporation Law (the "DGCL") inapplicable to the Merger Agreement and the Tender Agreement and the transactions contemplated thereby, including the Offer and the Merger, assuming that ▇▇▇▇▇▇'▇ and Purchaser are not "interested stockholders," as such term is defined in Section 203 of the DGCL, immediately prior to the execution of the Merger Agreement and the Tender Agreement by ▇▇▇▇▇▇'▇ and Purchaser); - Recommended that the stockholders of Beringer accept the Offer, tender their Shares pursuant to the Offer and adopt the Merger Agreement and approve the transactions contemplated thereby, including the Merger; and - Determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are fair to and in the best interests of the stockholders of Beringer, and - ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇▇'▇ financial advisor, rendered its opinion to the Beringer Board to the effect that the consideration to be received by the holders of Shares pursuant to the Offer and the Merger is fair to such holders from a financial point of view. The Merger Agreement provides that, if requested by ▇▇▇▇▇▇'▇, following the purchase by Purchaser of any Shares pursuant to the Offer and thereafter the purchase of Shares pursuant to the Tender Agreement, and from time to time thereafter as Shares are acquired by Purchaser, ▇▇▇▇▇▇'▇ is entitled to designate such depositnumber of directors, cause rounded up to the Paying Agent next whole number, on the Beringer Board as is equal to pay for all shares the product of Common Stock the total number of directors on the Beringer Board (determined after giving effect to the directors so appointed or elected pursuant to such provision and including current directors serving as officers of Beringer) multiplied by the percentage that the aggregate number of Shares beneficially owned by ▇▇▇▇▇▇'▇ or its affiliates (including such Shares as are accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase payment pursuant to the Offer.
(g, but excluding Shares held by Beringer) Promptly after bears to the Acceptance Datetotal number of Shares then outstanding. At such times, if requested by ▇▇▇▇▇▇'▇, Beringer will also cause each committee of the Beringer Board to include persons designated by ▇▇▇▇▇▇'▇ constituting the same percentage of each such committee as designees of ▇▇▇▇▇▇'▇ are of the Beringer Board. The Company will, upon request by ▇▇▇▇▇▇'▇, promptly increase the size of the Beringer Board or use its best efforts to secure the resignations of such number of directors as is necessary to enable designees of ▇▇▇▇▇▇'▇ to be elected to the Beringer Board and shall cause designees of ▇▇▇▇▇▇'▇ to be elected to the Beringer Board. In the event that designees of ▇▇▇▇▇▇'▇ are appointed or elected to the Beringer Board, until the Effective Time, the Company Beringer Board shall take all action requested by Parent necessary include at least three directors who were directors on the date of the Merger Agreement and who are neither officers of Beringer nor designees, stockholders, affiliates or associates of ▇▇▇▇▇▇'▇ (the "Independent Directors"). If no Independent Directors remain, the other directors shall designate three persons to elect fill the vacancies, none of whom shall be either an officer of Beringer or a designee, stockholder, affiliate or associate of ▇▇▇▇▇▇'▇, and such persons shall be deemed to be treated as a “controlled company” as defined by Section 801(a) Independent Directors for purposes of the NYSE AMEX Company Guide Merger Agreement. Prior to the Effective Time, the affirmative vote of a majority of the Independent Directors is required to: - amend or terminate the Merger Agreement on behalf of Beringer, - exercise or waive any of ▇▇▇▇▇▇▇▇'▇ rights or remedies under the Merger Agreement, - extend the time for performance of ▇▇▇▇▇▇'▇ obligations under the Merger Agreement, or - take any other action by Beringer in connection with the Merger Agreement required to be taken by the Beringer Board. Pursuant to the Merger Agreement, until the Effective Time, the affirmative vote of a majority of the Independent Directors is sufficient to cause Beringer to enforce any of its rights and make any necessary filings and disclosures associated with such statusremedies under the Merger Agreement.
Appears in 1 contract
The Offer. (a) Within Provided that this Agreement shall not have been terminated pursuant to Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) use its reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer within three (3) Business Days (and shall commence such Offer in any event within ten business days (10) Business Days) of the date of this Agreement.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not validly withdrawn prior to any then scheduled Expiration Time that number of shares of Company Common Stock which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the Fully Diluted Shares as of immediately prior to the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 1.01) (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit A, as such term is defined conditions may be modified in Rule 14d-1(g)(3) promulgated under accordance with this Agreement (together with the Exchange ActMinimum Condition, the “Business DaysOffer Conditions”) after ). For purposes of determining whether the date hereofMinimum Condition has been satisfied, any shares tendered in the Offer pursuant to guaranteed delivery procedures shall be included only if such shares have been delivered pursuant to such procedures. Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of consummate the Offer but after affording the Company and in accordance with its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, payment and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Time. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not validly withdrawn on pursuant to the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered Offer shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be paid net to the seller in cash, without interest, interest (subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered tax pursuant to Section 3.05), on the Offerterms and subject to the conditions set forth in this Agreement.
(bc) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions. Parent on behalf of and Merger Sub expressly reserves reserve the right from time (in their sole discretion) to time, subject to Section 1.1(c) and Section 1.1(d)waive, in its sole discretionwhole or in part, to waive any Tender Offer Condition, to increase the Per Share Amount Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that without the prior written consent of unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not (i) decrease reduce the Per Share Amount number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend change, modify or waive satisfaction of the Minimum Condition (as defined in Annex B)Condition, (iv) impose additional conditions add to the Offer conditions set forth in Exhibit A or modify or change any conditions to the Offer Condition in a any manner adverse to any shareholders of the holders of shares of Common StockCompany, (v) make except as otherwise provided in this Section 1.01, extend or otherwise change the expiration date of the Offer or (vi) otherwise amend, modify or supplement any change of the other terms of the Offer in any manner adverse to any shareholder of the Company.
(d) Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer that would require an extension has been so extended (the Initial Expiration Time, or delay such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with its terms, Merger Sub shall, and Parent shall cause Merger Sub to, (i) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties hereto may agree) each, if on any then-scheduled Expiration Time any of the then current Expiration DateOffer Conditions (other than the Minimum Condition) shall not be satisfied or waived, until such time as such condition or conditions are satisfied or waived; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (vi) shall not limit the right of Parent and Merger Sub to be twenty (20) Business Days, (ii) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days each, if on any then-scheduled Expiration Date as required Time each Offer Condition (other than the Minimum Condition) shall have been satisfied or permitted by Section 1.1(d)waived, and the Minimum Condition shall not have been satisfied; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (ii) shall be twenty (20) Business Days, (viiii) modify or amend extend the Tender Offer, at the request of the Company, until the expiration of a twenty (20)-day cure period after a breach of this Agreement by the Company, if on any then-scheduled Expiration Time any of the Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) shall not be satisfied due to a breach of this Agreement by the Company that is capable of being cured (it being understood that a willful failure to comply with Section 6.04 in any material respect shall be deemed incapable of being cured), and (iv) extend the Offer for the minimum period required by applicable Law, any interpretation or position of the Securities and Exchange Commission (the “SEC”), the staff thereof, the NASDAQ Stock Market (“NASDAQ”) or the Chicago Stock Exchange, Inc. applicable to the Offer, and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event (A) shall Merger Sub be required to extend the Offer beyond November 1, 2012 (the “Outside Date”) or (viiB) modify shall this Section 1.01(e) be construed or amend deemed to impair, limit or otherwise restrict in any other term manner the right of the parties to terminate this Agreement pursuant to Article VIII. Merger Sub expressly reserves the right to, in its sole discretion, following the Offer Closing, make available one (1) or more “subsequent offering periods” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. Except as otherwise expressly provided in this Section 1.01(e), the rights of Company to cause an extension of the Offer are cumulative so that, if at any time any of the foregoing is applicable, the Offer will be so extended further.
(f) On the terms and subject to the satisfaction or waiver by Merger Sub of the Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay the Offer Price (subject to any withholding of tax pursuant to Section 3.05) pursuant to Section 1.01(b) for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.”
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Article VIII. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated pursuant to Article VIII, prior to the acceptance for payment of the Company Common Stock tendered in the Offer, Merger Sub shall promptly return (and in any event within three (3) Business Days), and shall cause any depository acting on behalf of Merger Sub to promptly return, all tendered Company Common Stock to the registered holders thereof.
(h) As soon as practicable on the date of the commencement of the Offer, in Parent and Merger Sub shall file with the case of clauses (vi) and (vii), in any manner adverse SEC a Tender Offer Statement on Schedule TO with respect to the holders Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of shares letter of Common Stock transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements thereto, the “Offer Documents”). The Company shall promptly furnish to Parent and Merger Sub in their capacities as holders of shares of Common Stock.
(c) No agreement writing all information concerning the Company and its Subsidiaries that may be required by applicable Laws or representation hereby is made or shall be made reasonably requested by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, in the Offer Documents. Parent, Parent and Merger Sub shall take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to the shareholders of the Company, in each case as and to the extent required by the Exchange Act. Parent and Merger Sub, on the one hand, and the Company each agrees Company, on the other hand, shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Sub shall take all steps necessary to cause the Schedule TOOffer Documents, as so corrected or supplementedcorrected, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the shareholders of the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, relating to the Offer Documents. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment on any such Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. response, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECsuch comments.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under Subject to the Exchange Act, “Business Days”) after the date hereofterms and conditions herein, Merger Sub shall, shall (and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) an a cash tender offer to purchase all of the issued and outstanding shares of the Company Common Stock of the Company at the purchase price of for $16.00 7.75 U.S. Dollars per share of Company Common Stock (such priceamount, or any higher price greater amount per share of Company Common Stock paid by Merger Sub pursuant to the terms of the Offeroffer, the “Per Share Amount”) ” and shallsuch offer, on as it may be amended from time to time pursuant to the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits theretoterms hereof, the “Schedule TOOffer”) and all other necessary documents with no later than twenty (20) days after the Securities and Exchange Commission date hereof (the “SEC”) and cause unless such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Actdate is not a business day, in each which case in connection with the Offer first business day after the date that twenty (20) days after the “Offer Documents”date hereof), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”)Conditions (as defined below) and the terms and conditions hereof, Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, to accept for payment, and pay Merger Sub shall accept for (after giving effect to any required withholding or stock transfer Tax)payment, all shares of the Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any event not validly withdrawn on more than the Acceptance Datefourth business day) following the Expiration Date (as defined below). Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless and until this Agreement is terminated in accordance with Section 8.1.
(b) The obligation of Merger Sub to accept for payment payment, purchase, and to pay for any shares of Company Common Stock tendered pursuant to the Offer (and not validly tendered withdrawn) shall only be subject solely to the satisfaction or waiver pursuant to the terms hereof of (i) the condition (the “Minimum Condition”) that the number of shares of Company Common Stock validly tendered and not withdrawn prior to the Expiration Date, when added to any shares of Company Common Stock already owned by Merger Sub Parent or any of its subsidiaries, if any, shall be at least a majority of the shares of Company Common Stock then outstanding on a fully-diluted basis (assuming the exercise of all options, warrants and other rights to purchase shares of Company Common Stock regardless of exercise price, vesting schedule or other terms or conditions thereof (other than any Warrants, Company Stock Options and Company Stock Awards that are cashed out at the Acceptance Date pursuant to Section 3.3 or Section 3.5 and with respect to which the holders thereof have entered into the cancellation agreements referenced in Section 3.3 and Section 3.5) and (ii) the other conditions set forth in Annex A hereto (the conditions described in clauses (i) and (ii) are collectively referred to as the “Tender Offer Conditions”). The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to amend or waive any Tender Offer such condition (other than the Minimum Condition, which may not be amended or waived), to increase the Per Share Amount or payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease Company no change may be made that decreases the Per Share Amount or change (except as provided in Section 1.1(h)), changes the form of consideration payable in the Offer, imposes conditions to the Offer (other than by adding consideration)in addition to the Tender Offer Conditions, (ii) decrease decreases the number of shares of Company Common Stock subject to be purchased in the Offer, (iii) amend reduces the time period during which the Offer shall remain open, or waive satisfaction of the Minimum Condition (as defined in Annex B)modifies, (iv) impose additional conditions to amends or supplements the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common StockCompany Stockholders.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect Upon the terms and subject to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inconditions thereof, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be remain open until at least midnight, New York City time, on the 20th Business Day later of (i) the twentieth (20th) business day following the commencement of the Offer (determined using Rules in accordance with Rule 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) and (such dateii) May 31, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, 2013 (the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessaryfor which the Offer is open shall have been extended pursuant to, butand in accordance with, except as provided in the provisions of Section 1.1(d)(iii1.1(d) or as required by Applicable Law or the rules and regulations interpretations of the SEC or NYSE AMEX applicable to Securities and Exchange Commission (the Offer “SEC”) (including in connection with an increase in which event the Per Share Amount), in no event may term “Expiration Date” shall mean the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, latest time and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, as so extended, may expire).
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under Provided that nothing shall have occurred that, had the Exchange ActOffer referred to below been commenced, “Business Days”) after would give rise to a right to terminate the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub Offer pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto I hereto, as promptly as practicable after the date hereof following the public announcement of the terms of this Agreement (but in no event later than five Business Days after the date hereof), Merger Sub shall commence an offer (the “Tender "OFFER") to purchase all of the outstanding shares of Company Common Stock at a price for each share of Company Common Stock of $50, net to the seller in cash, and a number of shares of Parent Common Stock equal to the Exchange Ratio. The Offer Conditions”)shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock then owned by Parent and/or Merger Sub, represents at least two-thirds of the shares of Company Common Stock outstanding on a fully-diluted basis (the "MINIMUM CONDITION") and to the other conditions set forth in Annex I hereto. Merger Sub expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that (i) the Minimum Condition may be amended or 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 price per share of Company Common Stock or the number of shares of Company Common Stock sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (which shall be the 20th Business Day after the commencement of the Offer) or makes any other change which is adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) for one or more periods (not in excess of 10 Business Days each) but in no event ending later than September 30, 2000 if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law. If any of the conditions to the Offer is not satisfied or waived on any scheduled expiration date of the Offer, at the request of the Company, Parent shall cause Merger Sub to, and Merger Sub shall, 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 Merger Sub shall not be required to extend the Offer beyond September 30, 2000. Subject to the foregoing and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of . If Merger Sub expressly reserves does not accept for payment the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions shares of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable Company Common Stock in the Offer (other than by adding consideration), (ii) decrease on the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction initial expiration date of the Minimum Condition (as defined in Annex B), (iv) impose additional Offer by virtue of the failure of any of the regulatory conditions to the Offer specified in clause (i)(B) of the preamble to Annex I or modify any conditions clauses (c) or (d) of Annex I to the Offer in a manner adverse be satisfied, Parent and Merger Sub hereby agree to pay to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Company Common Stock in their capacities as holders cash interest at a rate of shares 8.00% per annum (calculated on the basis of Common Stock.
(ca 365 day calendar year) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by on the Company expressly for inclusion in, or with respect to Company information derived $75 per share offer consideration from and after the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on until the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept acceptance for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Company Common Stock validly tendered and not properly withdrawn in the Offer. "EXCHANGE RATIO" (as the same may be adjusted pursuant to Section 4.01(d)) shall be equal to (i) $25 divided by the Average Price (as defined below), if the Average Price is greater than or equal to $34.00; or (ii) .7353, if the Average Price is less than $34.00. "AVERAGE PRICE" means the average (rounded to the nearest 1/10,000) of the volume weighted averages (rounded to the nearest 1/10,000) of the trading prices of Parent Common Stock on the NYSE, as reported by Bloomberg Financial Markets (or such other source as the parties shall agree in writing), for the 15 Trading Days randomly selected by lot by Parent and the Company together from the 30 consecutive Trading Days ending on the third Trading Day immediately preceding the date on which all of the conditions to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit set forth in Annex I hereto have been satisfied or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerwaived.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days Provided that this Agreement shall not have been validly terminated in accordance with Section 11.01, as promptly as practicable (as such term is defined and in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”any event within 10 days) after the date hereof, Merger Sub shall, and Parent Subsidiary shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act1▇▇▇ ▇▇▇) an offer the Offer. Merger Subsidiary’s obligation to purchase all outstanding shares accept for payment and pay for Shares validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration date thereof (as it may be extended from time to time in accordance with the terms of Common Stock this Agreement) shall be subject solely to the satisfaction or waiver (if permitted hereunder) of the Company at conditions set forth in Annex I hereto (the purchase price “Offer Conditions”) and shall not be subject to the satisfaction of $16.00 per share of Common Stock any other conditions. The date on which Merger Subsidiary commences the Offer is referred to as the “Offer Commencement Date”. Merger Subsidiary shall not (such price, and Parent shall not permit Merger Subsidiary to) terminate or any higher price per share of Common Stock paid by Merger Sub otherwise withdraw the Offer unless and until this Agreement has been validly terminated pursuant to and in accordance with Section 11.01. In the event that this Agreement is validly terminated pursuant to and in accordance with Section 11.01, Merger Subsidiary shall promptly (and in any event within one Business Day after the date of such termination) terminate and withdraw the Offer and, notwithstanding the satisfaction or waiver of any Offer Conditions, shall not accept for payment or pay for any Shares theretofore tendered in the Offer.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and, prior to the expiration of the Offer, to make any change in the terms of or conditions to the Offer; provided that notwithstanding the foregoing, without the prior written consent of the Company, Merger Subsidiary shall not:
(i) impose conditions on Merger Subsidiary’s obligation to accept for payment and pay for Shares validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration of the Offer, other than the Offer Conditions;
(ii) waive or change the Minimum Condition (as defined in Annex I);
(iii) decrease the Offer Price;
(iv) change the form of consideration to be paid in the Offer;
(v) decrease the number of Shares sought in the Offer;
(vi) extend or otherwise change the expiration date of the Offer except as otherwise provided herein; or
(vii) amend or modify any of the Offer Conditions or amend or modify any of the terms of the Offer, in either case in a manner that broadens any of the “Per Share Amount”Offer Conditions, would require Merger Subsidiary to extend the Offer or is otherwise materially adverse to the holders of the Shares (in their capacity as such).
(c) and shallUnless extended as provided in this Agreement, the Offer shall expire on the date that is twenty business days (calculated as set forth in Rule 14d-1(g)(3) under the 1▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding the foregoing, unless this Agreement shall have been validly terminated pursuant to and in accordance with Section 11.01, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) extend the Offer (i) for successive extension periods of commencement reasonable duration if, at the scheduled expiration date of the Offer but (as it may be extended from time to time in accordance with this Agreement), any of the Offer Conditions shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived, and (ii) for any period required by any applicable rule, regulation, interpretation or position of the SEC or the staff thereof or NASDAQ or any period otherwise required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond (x) the End Date or (y) the date that is 60 days after affording the Company date that all of the Offer Conditions (other than the Minimum Condition and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents those that by their nature are to be disseminated satisfied at the expiration of the Offer) have been satisfied or, to holders the extent permissible, have been waived by Merger Subsidiary. If all of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (Conditions have been satisfied or waived prior to the “Offer Documents”), and shall consummate expiration of the Offer, subject and Merger Subsidiary is permitted by Applicable Law to accept for payment and pay for all Shares that have been validly tendered and not properly withdrawn pursuant to the terms Offer prior to the expiration of the Offer, Merger Subsidiary shall not (and conditions hereof Parent shall not permit Merger Subsidiary to) extend the Offer for any reason without the prior written consent of the Company. In the event that, following the expiration of the Offer and thereof. The Offer Documents will comply in all material respects with the provisions Merger Subsidiary’s acceptance for payment of all applicable Federal securities Laws. Shares validly tendered and not properly withdrawn pursuant to the Offer, Parent and Merger Subsidiary are unable to effect the Merger pursuant to the short form merger procedures set forth in Section 253 of the Delaware Law, Merger Subsidiary may, in its sole discretion, provide for a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act.
(d) Subject to the terms and conditions of set forth in this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Merger Subsidiary shall, and Parent shall cause Merger Sub it to, accept for payment and Merger Sub shallpay for, upon as promptly as practicable (i) after the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer (the date on which and not validly withdrawn on time at which Shares are first accepted for payment under the Offer, the “Acceptance Date. The obligation of Merger Sub to accept for payment ”) and to pay for any shares of Common Stock (ii) all Shares validly tendered shall be subject solely to in the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cashSubsequent Offering Period, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offerif any.
(be) As soon as practicable on the Offer Commencement Date, Parent on behalf of and Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub Subsidiary shall not (i) decrease file with the Per Share Amount or change the form of consideration payable in SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase, a form of letter of transmittal, summary advertisement and other than by adding consideration)customary documents, letters and other instruments (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (ii) decrease cause the number of shares of Common Stock Offer Documents to be purchased in the Offer, (iii) amend or waive satisfaction disseminated to holders of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions Shares to the Offer extent required by applicable federal securities laws, applicable rules or modify regulations of NASDAQ or any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right other Applicable Laws. Each of Parent and Merger Sub Subsidiary shall cause the Schedule TO and the Offer Documents to extend comply in all material respects with the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term requirements of the Offer, 1934 Act and all other Applicable Laws. The Company shall furnish Parent and Merger Subsidiary all information concerning the Company required by the 1934 Act to be set forth in the case of clauses (vi) Schedule TO and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Each of Parent, Merger Sub Subsidiary and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that it such information shall have become (or shall have become known to be) false or misleading in any material respect. In addition, if at any time prior to the expiration of the Offer, any information relating to the Offer, the Merger, Parent, Merger Subsidiary, the Company or any of their respective Affiliates is discovered by Parent, Merger Subsidiary or the Company which should be set forth in an amendment or supplement to the Schedule TO or the Offer Documents so that the Schedule TO and the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC. Parent and Merger Sub Subsidiary shall cause the Schedule TO, as so corrected corrected, amended or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities laws, applicable rules or regulations of any stock exchange or any other Applicable Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Schedule TO and the Offer Documents (including each amendment or supplement thereto) time before they are any such document is filed with the SEC. , and Parent and Merger Sub Subsidiary shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documentscounsel. Parent and Merger Sub Subsidiary shall provide the Company and its counsel with (in writing, if written), and shall consult with the Company regarding, i) any comments (or other communications, whether written or oral) , that may be received by Parent, Merger Sub Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt thereof. The Company of those comments or other communications and its counsel shall be given prior to responding to them, and (ii) a reasonable opportunity to review participate in the response of Parent and comment upon Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any proposed responses before they are filed discussions or meetings with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within Provided that this Agreement shall not have been terminated in accordance with Article VIII, as promptly as reasonably practicable after the date of this Agreement but in no event later than ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereofof this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, to (and the Company shall cooperate with Parent and Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act) an offer to purchase all outstanding shares Act of Common Stock of 1934, as amended, and the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) rules and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission regulations promulgated thereunder (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate ) the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. .
(b) Subject to the terms and conditions of this Agreement and to Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex B hereto I (the “Tender Offer Conditions”), Merger Sub shall (and Parent shall cause Merger Sub to, ) consummate the Offer in accordance with its terms and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares payment each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the time and not validly withdrawn on date of acceptance for payment, the “Acceptance Date. The obligation Time”) and promptly following the acceptance of Merger Sub to accept the shares of Company Common Stock for payment and to pay for any shares of Common Stock validly tendered shall be subject solely pursuant to the satisfaction Offer, pay (subject to any withholding of Tax pursuant to Section 1.01(i) or waiver by Merger Sub of Section 2.02(g)) the Tender Offer Conditions. The Per Share Amount shall be Price net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares each share of Company Common Stock held by the Company or its Subsidiaries shall be validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Sub to (and of Parent to cause Merger Sub to) accept for payment, and pay the Offer Price net to the seller in cash, without interest, for, each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Sub if permitted hereunder, of each of the Offer Conditions.
(bc) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms and conditions of the Offer as set forth in this Agreement, including the Minimum Tender Condition (as defined in Annex I) and the other conditions set forth in Annex I. Parent on behalf of and Merger Sub expressly reserves reserve the right from time (in their sole discretion) to time(i) increase the Offer Price, subject to Section 1.1(c(ii) and Section 1.1(d)waive, in its sole discretionwhole or in part, to waive any Tender Offer Condition, to increase the Per Share Amount or to Condition and (iii) make any other changes in the terms and conditions of the Offer; providedprovided that, that unless otherwise provided by Section 1.01(k), without the prior written consent of the Company, Parent and Merger Sub shall not (iA) decrease the Per Share Amount or Offer Price, (B) change the form of consideration payable in the Offer (other than by adding consideration)Offer, (iiC) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (ivD) impose additional conditions to on the Offer consummation of the Offer, (E) amend or modify any conditions to of the Offer Conditions in a manner adverse to the holders that adversely affects any holder of shares of Company Common Stock, (vF) make any change in or waive the Offer that would require an extension Minimum Tender Condition, (G) extend or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.1(d), (vi1.01(e) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) of this Agreement or (viiH) otherwise amend or modify or amend the Offer in a manner that adversely affects any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders holder of shares of Common Stock in their capacities as holders of shares of Company Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight, New York time, on the date that is 20 business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the “Expiration Date”). Merger Sub .
(e) The Offer shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, be extended from time to time as follows:
(i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC If on or the NYSE AMEX (“NYSE AMEX”) applicable prior to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is shall not have been satisfied (other than conditions which by their nature are to be satisfied at the Acceptance Time), or waived by ParentParent or Merger Sub if permitted hereunder, then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for such one or more successive periods of up to ten Business Days at 10 business days each in order to permit the satisfaction of such conditions (subject to the right of Parent and Merger Sub to waive any condition (other than the Minimum Tender Condition) in accordance with this Agreement); provided that, such extension of the Offer does not extend past the earlier of (A) the termination of this Agreement pursuant to Article VIII and (B) December 31, 2012 (the “Outside Date”);
(ii) If, within five business days prior to any then scheduled Expiration Date, the Company receives a time Company Competing Proposal (or such other period as shall be approved by the Company) which such period of time as a revision to a previously received Company Competing Proposal), then Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iiishall (and Parent shall cause Merger Sub to) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to extend the Offer (including in connection with an increase in the Per Share Amount), in no event may so that the Expiration Date be extended pursuant to this clause (ii) to a date does not occur until the later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation date that is 5 business days following the date of its approval the Company’s initial receipt of such Acquisition Proposal (or recommendation such revision to a previously received Acquisition Proposal) and (y) the first business day following the expiration of the applicable Notice Period related to such Acquisition Proposal (or such revision to a previously received Acquisition Proposal); provided, that such extension of the Offer following shall not extend past the public announcement termination of this Agreement pursuant to Article VIII; provided, further, that Merger Sub shall only be required to provide for one such extension of the receipt Offer pursuant to this Section 1.01(e)(ii); and
(iii) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for any period or periods required by applicable Law, by interpretation or position of the Securities and Exchange Commission (the “SEC”) or its staff or by the New York Stock Exchange (“NYSE”) applicable to the Offer. Merger Sub shall not terminate the Offer prior to any Acquisition Proposal scheduled Expiration Date (including any rescheduled Expiration Date) without the prior written consent of the Company except in the event that such reaffirmation or announcement this Agreement is made less than ten Business Days prior terminated pursuant to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawnArticle VIII. Nothing in this Section 1.1(d) 1.01 shall affect any of the termination rights set forth in ARTICLE SEVENArticle VIII.
(ef) In If fewer than 90% of the event number of outstanding shares of Company Common Stock are accepted for payment pursuant to the Acceptance Date occurs but Offer, Parent and Merger Sub does not acquire a sufficient number may, and at the request of shares the Company shall, and upon any such request by the Company Parent shall cause the Merger Sub to, provide for one “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Subject to the terms and conditions of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereofthis Agreement and the Offer, Merger Sub may shall (in its sole discretion), until the Outside Date, provide and Parent shall cause Merger Sub to) promptly after any Company Common Stock is validly tendered during a “subsequent offering period” (or any extension thereof) accept for payment, and pay (subject to any withholding of Tax pursuant to Section 1.01(i) or Section 2.02(g)) the Offer Price net to the seller in cash, without interest, for, each share of Company Common Stock that is validly tendered during such “subsequent offering period” or any extension thereof promptly after any such share of Company Common Stock is tendered during any such period. The Offer Documents will provide for the possibility of a number “subsequent offering period” in a manner consistent with the terms of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Actthis Section 1.01(f).
(fg) Promptly upon In the satisfaction or waiver by event that this Agreement is terminated pursuant to Article VIII, Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), shall (and Parent shall cause Merger Sub to, and Merger Sub shall, ) (i) as soon as practicable after within one business day of such termination, terminate the Expiration DateOffer, accept for payment and pay for all (ii) not acquire any shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon cause any depository acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
(h) As promptly as practicable following on the date of the commencement of the Offer, Parent and Merger Sub shall prepare and file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that will contain or incorporate by reference the Offer to Purchase, the summary advertisement and form of the related letter of transmittal (such depositSchedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements thereto and including exhibits thereto, the “Offer Documents”). Parent and Merger Sub shall as promptly as practicable cause the Paying Agent Offer Documents to pay for all be disseminated to holders of the shares of Company Common Stock in accordance with and to the extent required by Rule 14d-4 under the Exchange Act. Parent and Merger Sub agree that they shall cause the Offer Documents filed with the SEC by either Parent or Merger Sub to comply in all material respects with the Exchange Act and other applicable Laws. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub and Parent’s counsel all information concerning the Company, the Company’s Subsidiaries and the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.01(h), including such information required by applicable Laws to be set forth in the Offer Documents. No filing of, or amendment or supplement to, the Offer Documents will be made by Parent or Merger Sub, without providing the Company and its counsel a reasonable opportunity to review and comment thereon and giving due consideration to such comments. If at any time prior to the Acceptance Time or during any “subsequent offering period” (or extension thereof) any information relating to the Company, Parent, Merger Sub, or any of their respective Affiliates, directors or officers should be discovered by any of the parties hereto, which should be set forth in an amendment or a supplement to the Offer Documents so accepted that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto, and Parent and Merger Sub shall promptly file with the SEC an appropriate amendment or supplement describing such information and, to the extent required by Law, shall disseminate such amendment or supplement to the stockholders of the Company. Parent and Merger Sub shall notify the Company promptly of the receipt of any comments, whether written or oral, from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for paymentamendments or supplements to the Offer Documents or for additional information, and shall promptly supply the Company with copies of all correspondence (including a written summary of any oral communications) between Parent, Merger Sub or any of their respective Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Offer Documents. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents.
(i) If any portion of the Offer Price is to be paid to a person other than the person in whose name the tendered shares of Company Common Stock are registered, the amount of any stock transfer or other similar Taxes (whether imposed on the registered holder(s), or such other person, or otherwise) payable on account of such issuance or transfer to such other person shall be deducted from the Offer Price for the exchange of such shares of Company Common Stock in the Offer, unless evidence satisfactory to Merger Sub of the payment of such Taxes, or exemption therefrom, is submitted. For the avoidance of doubt, Section 2.02(g) applies to payments made pursuant to this Section 1.01.
(j) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(gk) Promptly after If, between the date of this Agreement and the Acceptance DateTime, the outstanding shares of Company Common Stock shall take all action requested by Parent necessary to elect to be treated have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a “controlled company” as defined by Section 801(aresult of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization (but excluding any change that results from (i) the exercise of stock options or the conversion into Company Common Stock of other equity awards relating to the Company Common Stock or (ii) the grant of stock-based compensation (other than any such grants not made in accordance with the terms of this Agreement) to directors or employees of the NYSE AMEX Company Guide or its Subsidiaries under the Company’s stock option or compensation plans or arrangements), the Offer Price shall be appropriately and make any necessary filings and disclosures associated with proportionately adjusted to reflect such statusreorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization.
Appears in 1 contract
Sources: Merger Agreement (Dollar Thrifty Automotive Group Inc)
The Offer. (a) Within ten business days (as such term i) Unless this Agreement shall have been terminated pursuant to Article IX and (ii) provided that the Company shall have complied in all material respects with its obligations to provide the information it is defined required to provide to Parent and Merger Sub in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereofaccordance with Section 1.2, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Offer for the Company at Common Shares in exchange for the purchase price Common Shares Consideration (the “Common Share Offer Consideration”), the Company Series A Shares in exchange for the Series A Consideration (the “Series A Offer Consideration”) and the Company Series B Shares in exchange for the Series B Consideration (the “Series B Offer Consideration”) as promptly as reasonably practicable, but in no event later than 25 Business Days following the date of $16.00 per share this Agreement.
(b) The obligation of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub (and Parent’s obligation to cause Merger Sub) to accept for exchange, and exchange and pay the Common Share Offer Consideration for the Company Common Shares, the Series A Offer Consideration for the Company Series A Shares and the Series B Offer Consideration for the Company Series B Shares tendered 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 Company Shares that, together with any Company Shares directly or indirectly owned by Parent or Merger Sub, would represent at least 90% of all Company Shares outstanding at the Acceptance Time (excluding shares held, directly or indirectly, by the Company) as required pursuant to Article 18 (5) Swiss Merger Act (the “Per Share AmountMinimum Condition”) and shall, on (ii) the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto C (the Minimum Condition and such other conditions collectively referred to herein as the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount Condition or to make any other changes in modify the terms and conditions of the Offer; providedOffer in any manner not inconsistent with this Agreement, that except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration)to, (iiA) decrease reduce the number of shares of Common Stock Company Shares subject to be purchased in the Offer, (iiiB) amend change the Common Shares Offer Consideration, the Series A Offer Consideration or waive satisfaction of the Minimum Condition (as defined in Annex B)Series B Offer Consideration, (ivD) waive any Offer Condition, except as and only to the extent expressly permitted pursuant to Annex C, (E) impose additional conditions or requirements to the Offer or modify any conditions to other than the Offer Conditions, (F) amend, modify or supplement any Offer Condition in a manner (1) adverse to the holders of shares of Common StockCompany Shares (in their capacity as such), or (v2) make any change in the Offer that would require an extension prevent, materially delay or delay of impair the then current Expiration Date; provided, however, that this clause (v) shall not limit the right ability of Parent and or Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of consummate the Offer, (G) except as otherwise provided in the case of clauses (vithis Section 1.1(b) and (viior Section 1.1(c), terminate, extend or otherwise amend or modify the Expiration Date, or (H) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act. With respect to all Company Shares that are validly tendered, the respective holders of Company Shares shall retain any manner adverse and all rights to or derived from such Company Shares (including with respect to dividends and voting rights) with respect to any actions taken or rights incurred prior to the holders Acceptance Time, subject to the terms of shares of Common Stock in their capacities as holders of shares of Common Stockthe Specified Shareholders Support Agreement.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub Unless extended pursuant to and in accordance with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference interms of this Section 1.1(c), the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly expire one minute after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight11:59 p.m., New York City time, on the 20th date that is 20 Business Day following the commencement of the Offer Days (determined using Rules for this purpose calculated in accordance with Rule 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) from the date that the Offer is commenced (such date, initial expiration date or such subsequent date to which the expiration of the Offer is has been extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw If, at the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is Condition has not been satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it waiver is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereofhereunder), Merger Sub may shall (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), and Parent shall cause Merger Sub to, and Merger Sub shall, ) extend the Offer for (i) successive periods of ten Business Days each (or such other number of Business Days as soon the parties may agree in writing) in order to permit the satisfaction of such Offer Conditions, until the earlier to occur of (A) the satisfaction or waiver (if such waiver is permitted hereunder) of all of the Offer Conditions and (B) if, as practicable of such date, Parent is entitled to terminate this Agreement pursuant to Section 9.1(d), the End Date and (ii) any period required by any rule, regulation, interpretation or position of the SEC or its staff or the NYSE applicable to the Offer or any period required by applicable Law.
(d) Subject to the foregoing and other applicable Law and upon the terms of and subject to the conditions of this Agreement, including the satisfaction or waiver of all of the Offer Conditions, Merger Sub shall accept for exchange, as promptly as permitted under applicable securities Law, and exchange and promptly pay the Common Share Offer Consideration, the Series A Offer Consideration and the Series B Offer Consideration, in each case, no later than two Business Days after the Expiration Dateexpiration of the Offer, accept for payment each of the Company Common Shares, Company Series A Shares and pay for all shares of Common Stock Company Series B Shares, as applicable, validly tendered and not properly withdrawn pursuant to the Offer (the date and time of acceptance for paymentsuch acceptance, the “Acceptance DateTime”), which acceptance may be by oral notice . At or prior to the Paying AgentAcceptance Time, (ii) on the Acceptance DateParent shall deposit, deposit or shall cause to be deposited deposited, with the Paying AgentAgent in accordance with Article III, cash in U.S. dollars an amount sufficient to pay the aggregate Per Common Share Amount Offer Consideration, Series A Offer Consideration and Series B Offer Consideration payable under this Section 1.1(d), and the exchange and payment procedures set forth in Section 3.2(b) (except for the first sentence of Section 3.2(b)) with respect to the Merger Consideration and the Effective Time or Closing shall apply mutatis mutandis with respect to the Offer Consideration and the Acceptance Time.
(e) The Company agrees that no Company Shares held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(f) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall contain a summary term sheet required thereby and an offer to exchange and a form of related letter of transmittal (collectively, together with any amendments or supplements thereto and such accepted shares other ancillary documents as may be required, the “Offer Documents”). Parent and ▇▇▇▇▇▇ Sub agree to, as promptly as reasonably practicable on the date of Common Stock commencement of the Offer, use reasonable best efforts to cause the Offer Documents to be disseminated to the Company’s shareholders as and to the extent required by applicable U.S. federal securities Law and other applicable Law. The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company, its directors, officers and Affiliates as may be required by applicable U.S. federal securities Law or reasonably requested by Parent or Merger Sub or their respective Representatives for inclusion in the Schedule TO or the other Offer Documents. Parent and Merger Sub shall (and Parent shall cause Merger Sub to) use reasonable best efforts to: cause the Schedule TO and the other Offer Documents to comply in all material respects with (i) the Securities Act and the Exchange Act, (ii) the rules and regulations of the NYSE, and (iii) the Swiss Financial Services Act (unless not applicable or an exemption applies) and other applicable Law, in each case, as applicable. If, at any time before consummation of the Offer, Parent shall become aware that there has occurred an event that is required to be set forth in an amendment to the Schedule TO or in a supplement to the other Offer Documents: (A) Parent shall promptly prepare such an amendment or supplement; and (B) Parent shall promptly file with the SEC and distribute to the shareholders of the Company such amendment or supplement, in each case, as and to the extent required by applicable U.S. federal securities Law or the Swiss Financial Services Act (unless not applicable or an exemption applies). Each of Parent, Merger Sub and the Company will promptly correct any information provided by it for use in the Schedule TO and the other Offer Documents if and to the extent that such information shall have become false or misleading with respect to any material fact. If at any time prior to the Acceptance Time, an amendment or supplement to the Schedule TO or other Offer Documents is necessary so that the Schedule TO or other Offer Documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, each of Parent and Merger Sub shall(subject to the Company’s written consent, which shall not be unreasonably withheld, delayed, or conditioned) promptly file an appropriate amendment or supplement describing such information with the SEC and/or disseminate to the holders of Company Shares and Parent Class A Stock to the extent required by applicable Law (including the Swiss Financial Services Act), the SEC, its staff or NYSE, as applicable. The Company and Parent will, and will cause their respective Representatives to, reasonably cooperate with the other in the preparation of the Schedule TO and the other Offer Documents. Without limiting the generality of the foregoing, Parent shall, and shall cause its Representatives to, provide the Company and its Representatives with a reasonable opportunity, in advance of initial filing or any amendment or filing of any supplement thereto as soon as reasonably practicable prior to filing, to review and comment on the Schedule TO and the other Offer Documents and Parent shall address or include, as applicable, in such documents comments reasonably proposed by the Company or its Representatives. Parent shall promptly notify the Company in writing of the receipt of any written or oral comments from or other correspondence with the SEC or its staff with respect to the Schedule TO or the other Offer Documents and any request by the SEC or its staff for amendments or supplements to the Schedule TO or the other Offer Documents or for additional information and shall promptly supply the Company with copies of all correspondence between it and any of its Representatives or Affiliates, on the one hand, and the SEC or its staff, on the other hand, with respect to the Schedule TO or the other Offer Documents.
(g) The Offer Consideration shall be appropriately adjusted to reflect fully the effect of any stock split, stock dividend (including any dividend or similar distribution of securities convertible into Company Shares), reorganization, recapitalization, reclassification or other like change with respect to Company Shares having a record date on or following the date hereof and before the Acceptance Time, it being understood that (i) the intent of such deposit, cause adjustment is to provide the Paying Agent holders of Company Shares with the same economic effect as contemplated by this Agreement before any such change and (ii) nothing in this Section 1.1(g) shall be construed to pay for all shares permit the Company or Parent to take any action with respect to its securities that is prohibited by the terms of Common Stock so accepted for paymentthis Agreement. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares deliver the consideration payable upon exercise of Common Stock that Merger Sub becomes obligated to purchase the Company Warrants pursuant to Section 4.4 of the OfferWarrant Agreement following the Acceptance Time.
(gh) Promptly after Unless this Agreement is terminated pursuant to Article IX, Merger Sub shall not terminate or withdraw the Acceptance Date, Offer prior to the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) Expiration Date without the prior written consent of the NYSE AMEX Company. In the event this Agreement is terminated pursuant to Article IX, Merger Sub shall promptly (and in any event within 24 hours) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Company Guide and make Shares pursuant thereto. If the Offer is terminated pursuant to Article IX of this Agreement, prior to the purchase of Company Shares in the Offer, Merger Sub shall promptly return, or cause any necessary filings and disclosures associated depositary acting on behalf of Merger Sub to return, in accordance with such statusapplicable Law, all tendered Company Shares to the tendering shareholders of the Company.
Appears in 1 contract
The Offer. (a) Within ten Provided that this Agreement shall not have been terminated in accordance with Article IX, then (i) not later than the first Business Day after execution of this Agreement, Parent and Company shall issue a public announcement of the execution of this Agreement, and (ii) Subsidiary shall, as promptly as practicable, but in no event later than five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shallof such public announcement, and Parent shall cause Merger Sub Subsidiary to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer. The Offer shall be made pursuant to the Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to Company and containing the terms and conditions set forth in this Agreement. The obligation of Subsidiary to, and of Parent to cause Subsidiary to, commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Subsidiary in its sole discretion, PROVIDED, HOWEVER, that the Subsidiary shall not waive the Minimum Condition without the prior written consent of the Company). Subsidiary expressly reserves the right, subject to compliance with the Exchange Act) an offer , to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to modify the terms of the Offer, except that, without the “Per Share Amount”express written consent of Company, neither Parent nor Subsidiary shall (i) and shallreduce the number of Shares subject to the Offer, on (ii) reduce the Offer Price, (iii) add to or modify the Offer Conditions, (iv) except as provided in the next sentence, change the expiration date of commencement the Offer, (v) change the form of consideration payable in the Offer or (vi) amend, alter, add or waive any term of the Offer but in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after affording the commencement date of the Offer, all Offer Conditions have not been satisfied or waived, Subsidiary may, and at the request of the Company shall, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days, and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to Subsidiary may, without the consent of Company, (A) extend the Offer for any comments made therebyperiod required by any rule, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements theretoregulation, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with interpretation or position of the Securities and Exchange Commission (the “"SEC”") and cause such documents or the SEC staff applicable to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject and (B) extend the Offer for up to ten Business Days if there have been validly tendered and not withdrawn prior to the terms expiration of the Offer such number of Shares that would constitute at least 75% but less than 90% of the issued and conditions hereof and thereof. The Offer Documents will comply in all material respects with outstanding Shares as of the provisions date of all applicable Federal securities Lawsdetermination. Subject only to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”)Exhibit A, Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, and Merger Sub shall, upon as soon as practicable after the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock Shares validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub that Subsidiary becomes obligated to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) On the date of commencement of the Offer, Parent and Subsidiary shall file with the SEC a Tender Offer Statement on behalf of Merger Sub expressly reserves the right Schedule 14D-1 (as supplemented or amended from time to time, subject the "Schedule 14D-1") with respect to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (iii) amend such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or waive satisfaction amendments thereto, the "Offer Documents"). Parent and Subsidiary agree that the Offer Documents shall comply as to form and content in all material respects with the Exchange Act and the rules and regulations promulgated thereunder, and the Offer Documents, on the date first published, sent or given to Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the Minimum Condition (as defined in Annex B)circumstances under which they were made, (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditionsmisleading, except for the Minimum Condition) that no representation or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby warranty is made or shall be made by Parent or Merger Sub Subsidiary with respect to written information supplied by the Company expressly or any of its stockholders specifically for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated incorporation by reference in, in the Offer Documents. Parent, Merger Sub Subsidiary and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and Parent and Merger Sub shall Subsidiary further agree to take all steps necessary to cause the Schedule TO, 14D-1 as so corrected or supplemented, to be filed with the SEC and the other Offer Documents, Documents as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any upon the Offer Documents (including each amendment or supplement thereto) before they are filed prior to their filing with the SECSEC or dissemination to the stockholders of Company, and Parent and Subsidiary shall consider such comments in good faith. Parent and Merger Sub shall give reasonable and good faith consideration Subsidiary agree to provide Company any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub Subsidiary or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECof such comments.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub Subsidiary on a timely basis the funds necessary sufficient to purchase accept for payment, and pay for, any shares of Common Stock and all Shares that Merger Sub Subsidiary becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(gd) Promptly after Subsidiary shall be entitled to deduct and withhold from the Acceptance Date, consideration otherwise payable pursuant to the Company shall take all action requested by Parent necessary to elect Offer such amounts as may be required to be treated deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or under any provision of state, local or foreign tax law; PROVIDED, HOWEVER, that Subsidiary shall promptly pay any amounts deducted and withheld hereunder to the applicable governmental authority, shall promptly file all tax returns and reports required to be filed in respect of such deductions and withholding, and shall promptly provide to Company proof of such payment and a “controlled company” as defined by Section 801(a) copy of the NYSE AMEX Company Guide all such tax returns and make any necessary filings and disclosures associated with such statusreports.
Appears in 1 contract
The Offer. (a) Within ten business days (The Merger Agreement provides that Purchaser will commence the Offer as such term promptly as practicable, and in any event on or before June 26, 2015. Purchaser’s obligation to accept for payment and pay for Shares validly tendered in the Offer is defined subject to the satisfaction of the Minimum Condition and the other conditions that are described in Rule 14d-1(g)(3) promulgated under Section 15 — “Conditions to the Exchange Act, Offer.” Subject to the satisfaction of the Minimum Condition and the other conditions that are described in Section 15 — “Business Days”) after Conditions to the date hereof, Offer,” the Merger Sub shallAgreement provides that Purchaser will, and Parent shall will cause Merger Sub Purchaser to, (accept for payment and pay for all Shares validly tendered and not properly withdrawn in the Company shall cooperate with Merger Sub to) commence (within Offer on or promptly after the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such priceExpiration Date, or any higher price per share of Common Stock paid by Merger Sub as may be extended pursuant to the terms of the Offer, the “Per Share Amount”) Merger Agreement. Acceptance of payment for Shares pursuant to and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for paymentwhich shall occur on July 27, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered 2015 unless we extend the Offer pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub terms of the Tender Merger Agreement, is referred to herein as the “Offer Conditions. The Per Share Amount shall be net Closing,” and the date on which the Offer Closing occurs is referred to herein as the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer“Offer Closing Date.
(b) ” Parent on behalf of Merger Sub and Purchaser expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or Offer Price, to make any other changes in the terms and conditions of the Offer and to waive conditions to the Offer; provided, except that without the Dealertrack’s prior written consent of the Company, Merger Sub shall not (i) approval is required for Parent and Purchaser to: • decrease the Per Share Amount or Offer Price; • change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease Offer; • change the number of shares of Common Stock Shares to be purchased in the Offer, (iii) ; • amend or waive satisfaction of the Minimum Condition, the Termination Condition, the Antitrust Law Condition (as defined in Annex B), (iv) impose additional conditions or the Governmental Authority Condition; • add any condition to the Offer or modify any conditions term that is adverse to the holders of Shares; • extend the Expiration Date except as required or permitted by the Merger Agreement; • provide for a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act; or • modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change Shares. The Merger Agreement contains provisions to govern the circumstances in the Offer that would require an extension which Purchaser is required or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub permitted to extend the Expiration Date as Offer and Parent is required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of cause Purchaser to extend the Offer. Specifically, in the case of clauses (vi) and (vii)Merger Agreement provides that: • If any Offer Condition has not been satisfied or, in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made extent waivable by Parent or Purchaser pursuant to the Merger Sub with respect to information supplied Agreement, waived by the Company expressly for inclusion inParent or Purchaser, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, Purchaser shall (and Parent shall cause Purchaser to) extend the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such successive periods of up to ten Business Days at a time 5 business days each (or up to 20 business days if Parent so desires and Dealertrack consents in writing prior to such other period as shall be approved by extension), the Company) which length of each such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon its sole discretion in order to permit the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the OfferConditions.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within Subject to the terms and conditions set forth in this Agreement, as promptly as reasonably practicable after the date of this Agreement, but in no event later than ten business days (as such term is defined in 10) Business Days after the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-1(g)(3) promulgated 14d-2 under the Exchange Act) the Offer to purchase any and all outstanding Shares at a price per Share equal to the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, purchase, accept for payment, and pay for, Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Annex A (the “Offer Conditions”).
(b) The initial expiration date of the Offer shall be the twentieth (20th) Business DaysDay following the commencement of the Offer (determined using Exchange Act Rules 14d-1(g)(3) and 14d-2) (such date being the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an “Expiration Date”) after ). Notwithstanding the date hereofforegoing, if, on the initial Expiration Date or any subsequent Expiration Date, all of the Offer Conditions have not been satisfied or waived (other than any Offer Conditions that by their nature cannot be satisfied until the closing of the Offer, which shall be required to be satisfied or waived at the closing of the Offer), then Merger Sub shall, and Parent shall cause Merger Sub to, subject to the rights of the parties under Article 8, extend (and re-extend) the Company shall cooperate with Merger Sub to) commence (within Offer and its Expiration Date beyond the meaning of Rule 14d-2 promulgated under initial Expiration Date or such subsequent Expiration Date until the Exchange Act) an offer to purchase date all outstanding shares of Common Stock of the Company at Offer Conditions are satisfied or waived (other than any Offer Conditions that by their nature cannot be satisfied until the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms closing of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents which shall be required to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under satisfied or waived at the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration closing of the Offer, accept for payment, and pay for ); provided that any such extension (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered i) shall be subject solely to the satisfaction or waiver in increments determined by Merger Sub of not more than ten (10) Business Days and (ii) shall not extend beyond the Tender Offer ConditionsWalk Away Date. The Per Share Amount Offer may not be terminated prior to its Expiration Date (as such Expiration Date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Article 8. In no event shall be net Merger Sub extend the Offer beyond the date that is five (5) Business Days prior to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that Walk Away Date without the prior written consent of the CompanyCompany in its sole discretion. Notwithstanding the foregoing, subject to the rights of the parties under Article 8, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in extend the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) and Parent shall not limit the right of Parent and cause Merger Sub to extend the Expiration Date as Offer, for any period required by any rule, regulation, interpretation or permitted position of the SEC or the staff thereof applicable to the Offer or any period required by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common StockLaw.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. Merger Sub shall, and Parent shall cause Merger Sub to, comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the foregoing, Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions shall have been satisfied or waived.
(d) Merger Sub may, in its sole discretion (and without any required consent of the Company, but subject to the terms set forth in this Section 1.1(d)), elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act (each a “Subsequent Offering Period”) following the Acceptance Time if (i) Merger Sub shall have complied with all of the conditions of Rule 14d-11 under the Exchange Act and (ii) at the commencement of any Subsequent Offering Period (or extension thereof) the number of Shares owned by Parent, Merger Sub and their respective Subsidiaries (including any Shares beneficially owned by any of the foregoing and including all Shares validly tendered and not properly withdrawn at the Acceptance Time) represent less than 90% of the then outstanding number of Shares; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), Merger Sub shall not be permitted to provide for a Subsequent Offering Period. If immediately following the Acceptance Time, Parent, Merger Sub and their respective Subsidiaries own more than 70% but less than 90% of the Shares outstanding at that time (which shall include (i) shares beneficially owned by Parent, Merger Sub and their respective Subsidiaries, which Shares shall be converted into direct ownership at or prior to the expiration of the Offer by Parent, Merger Sub or their respective Subsidiaries, as the case may be, and (ii) shares validly tendered in the Offer and not properly withdrawn at the Acceptance Time), to the extent requested by the Company, Merger Sub shall provide for, and Parent shall cause Merger Sub to provide for, a Subsequent Offering Period of ten (10) Business Days; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), the Company shall not have the right to request a Subsequent Offering Period; provided, further that the Company shall not have the right to request a Subsequent Offering Period if such Subsequent Offering Period would extend beyond the date that is five (5) Business Days prior to the Walk Away Date without the prior written consent of Parent (which consent may be withheld in its sole discretion). Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered and not properly withdrawn during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered during any Subsequent Offering Period and in any event in compliance with Rule 14d-11(c) promulgated under the Exchange Act.
(e) Parent and Merger Sub expressly reserve the right to waive any of the Offer Conditions, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, do any of the following:
(i) reduce the number of Shares subject to the Offer;
(ii) reduce the Offer Price;
(iii) amend, change or waive the Minimum Tender Condition;
(iv) except as expressly provided in Section 1.1(b), extend or otherwise change the Expiration Date, except (A) as required by applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof) or (B) in connection with an increase of the Offer Price;
(v) change the form of consideration payable in the Offer;
(vi) impose any condition to the Offer other than the Offer Conditions; or
(vii) otherwise amend, modify or supplement any of the Offer Conditions or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of the Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions.
(f) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall (i) contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement and such other information or documents as required by Law (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, being referred to as the “Offer Documents”) and (ii) be in form reasonably satisfactory to the Company. The Company shall as promptly as practicable upon request of Parent, provide Parent and Merger Sub with all information concerning the Company that is required to be included in the Offer Documents. Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the requirements of applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the holders of Shares, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent necessary such that the Offer Documents do not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by applicable U.S. federal securities Laws. The Company and its counsel shall be afforded a reasonable opportunity to review and comment upon the Offer Documents each time before they are filed with the SEC and/or disseminated to holders of Shares (and the Company and its counsel shall provide any comments thereon as soon as reasonably practicable, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel). Parent and Merger Sub shall provide to the Company and its counsel copies of any written comments or telephonic notification of any oral comments or other communications Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments or other communications, shall consult with the Company and its counsel prior to responding to any such comments or other communications, and shall provide the Company with copies of all written responses and telephonic notification of any oral responses thereto of Parent or Merger Sub or their counsel, provided that Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to participate in the response of Parent and Merger Sub to any such comments or other communications and to provide comments on that response (to which reasonable and good faith consideration shall be given by Parent and Merger Sub).
(g) Promptly Unless this Agreement is terminated pursuant to Section 8.1, neither Parent nor Merger Sub shall terminate or withdraw the Offer without the prior written consent of the Company in its sole discretion, except that in the event this Agreement is terminated pursuant to Section 8.1, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the tendering stockholders.
(h) The Offer Price shall be adjusted to reflect fully the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock effected by the Company in accordance with the terms and conditions of this Agreement and occurring (or for which a record date is established) after the Acceptance Date, date of this Agreement and prior to the Company shall take all action requested payment by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of Merger Sub for the NYSE AMEX Company Guide Shares validly tendered and make any necessary filings and disclosures associated not properly withdrawn in connection with such statusthe Offer.
Appears in 1 contract
The Offer. (a) Within ten business days Subject to the provisions of this Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in no event later than five Business Days after the date of such term is defined in announcement, commence (within the meaning of Rule 14d-1(g)(314d-2(a) promulgated under of the Exchange Act) a tender offer (the "OFFER") to purchase all of the outstanding shares of Company Common Stock at a price of $10.00 per share, “net to the seller in cash without interest (the "PRICE PER SHARE"), subject to reduction only for any applicable withholding taxes. The Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment, purchase and pay for shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) at least that number of shares of Company Common Stock equivalent to 75% of the Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer (subject to reduction as described below, the "MINIMUM SHARES") being validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction of the other conditions set forth in ANNEX A hereto, any of which conditions may be waived by Merger Sub in its sole discretion; provided, however, that Merger Sub shall not reduce the Minimum Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall (i) decrease the Price Per Share payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer below a majority of the Fully Diluted Shares of Company Common Stock or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer (including the conditions set forth in ANNEX A hereto) or impose additional conditions to the Offer, (iv) except as provided below, change the expiration date of the Offer, or (v) otherwise amend, add or waive any term or condition of the Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after the commencement date of the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days without the Company's prior written consent, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); provided further that if on any scheduled expiration date of the Offer all conditions to the Offer (other than the Minimum Shares) have been satisfied or waived, and the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent at least a majority of the Fully Diluted Shares of Company Common Stock, and Merger Sub does not elect to reduce the Minimum Shares and consummate the Offer, then Merger Sub shall, at the Company's request, on up to three occasions, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days”, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) after without the date hereofconsent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer and (y) extend the Offer if (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of Company Common Stock; provided, however, that in no event shall the extensions permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Assuming the prior satisfaction or waiver of all the conditions to the Offer set forth in ANNEX A, and subject to the terms and conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (accept for payment, purchase and the Company shall cooperate pay for, in accordance with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (as soon as reasonably practicable after the date expiration of acceptance for paymentthe Offer. Parent shall provide, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agentprovided, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub Sub, on a timely basis basis, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable, but in no event later than the fifth business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) day after the date hereofof this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, (and commence the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company Offer at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to Offer Price. The initial expiration date for the terms Offer shall be the twentieth business day following the commencement of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely only to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; provided, however, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Per Share Amount shall Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be net asserted by Parent and Merger Sub regardless of the circumstances giving rise to the seller any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in cash, without interest, subject to reduction for any applicable withholding whole or stock transfer Taxes payable by such sellerin part. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of and Merger Sub expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer; providedprovided however, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) amend modify or waive satisfaction of add to the Minimum Condition (as defined in Annex B)Tender Offer Conditions, (iv) impose additional conditions to change the form of consideration payable in the Offer or modify (v) make any conditions to other change in the terms of the Offer in a manner which is materially adverse to the holders of shares of Common Stock, (v) make any change in . Notwithstanding the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parentforegoing sentence, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Submay, without Parent or Merger Sub obtaining the consent of the Company, (iA) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in if at the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, expiration date of the Offer any of the Tender Offer Conditions is conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived by Parentwaived, for such periods of up until the third business day after the day Merger Sub reasonably believes to ten Business Days at a time (or such other period as shall be approved by the Company) earliest date on which such period of time as Merger Sub may deem reasonably necessaryconditions will be satisfied, but, except as provided in Section 1.1(d)(iii(B) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to extend the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant from time to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for time up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt maximum of an Acquisition Proposal in aggregate of 30 days beyond the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if first day all of the Tender Offer Conditions are satisfied have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation or waived and it is permitted under position of the SEC or the staff thereof applicable Law to accept for payment and pay for validly tendered shares the Offer. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of Common Stock that are not validly withdrawn. Nothing in termination of this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur Agreement pursuant to Section 2.7 hereof10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub may (in its sole discretion)shall extend the Offer from time to time, until subject to the Outside Dateright of Parent, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Tender Offer Conditions in accordance with Section 1.1(b)Offer, Merger Sub shall, and Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not properly withdrawn pursuant to the Offer (the date of acceptance for paymentwithdrawn. Parent shall provide, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agentprovided, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the all funds necessary to purchase any accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(gb) Promptly As soon as reasonably practicable on the date the Offer is commenced, Parent and Merger Sub shall file, and Parent shall cause Merger Sub to file, with the SEC and disseminate to the holders of shares of Common Stock to the extent required by law a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer. The Schedule 14D-1 shall contain (included as an exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a form of the related letter of transmittal (the "Letter of Transmittal"), as well as all other information and exhibits required by law (which Schedule 14D-1, Offer to Purchase, Letter of Transmittal and such other information and exhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Company and its counsel shall be given the opportunity to review and comment upon the Schedule 14D-1 and any amendments thereto prior to their filing with the SEC. The Schedule 14D-1 will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation is made by Parent or Merger Sub with respect to any information supplied by the Company expressly in writing for inclusion or incorporation by reference in the Schedule 14D-1. Parent and Merger Sub agree to promptly provide the Company and its counsel with (i) any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Schedule 14D-1 after the Acceptance Datereceipt of such comments and (ii) copies of any responses by Merger Sub or Parent to such comments. Each of Parent and Merger Sub agrees to promptly correct any information provided by it for use in the Offer Documents that shall be, the Company shall or have become, false or misleading in any material respect, and Parent and Merger Sub further agree to take all action requested by Parent steps necessary to elect cause the Schedule 14D-1 as so corrected to be treated filed with the SEC and the other Offer Documents as a “controlled company” so corrected to be disseminated to holders of Common Stock, in each case as defined and to the extent required by Section 801(a) applicable federal securities laws. In the event that the Offer is terminated or withdrawn by Merger Sub, Parent and Merger Sub shall cause all of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such statustendered shares of Common Stock to be returned to the registered holders of the shares of Common Stock represented by the certificate or certificates surrendered to the Paying Agent.
Appears in 1 contract
Sources: Merger Agreement (United Pan Europe Communications Nv)
The Offer. (a) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning The obligations of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered and not withdrawn prior to the expiration of the Offer shall be subject solely only to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall , any of which may be net to the seller in cash, without interest, subject to reduction for any applicable withholding waived by Parent or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the OfferSub; provided, however, that neither Parent or Sub shall waive the Minimum Condition (as defined in Annex A) without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Conditions and, Merger subject to the immediately preceding sentence, may be waived by Parent and Sub in whole or in part. Parent and Sub expressly reserve the right to modify the terms of the Offer, including without limitation to extend the Offer beyond any scheduled expiration date; provided, however, without the consent of the Company, Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions add to the Tender Offer Conditions or otherwise modify any conditions to the Tender Offer Conditions in a manner that is adverse to the holders of shares Common Stock or (iv) change the form of Common Stock, (v) make any change consideration payable in the Offer. Parent and Sub covenant and agree that, subject to the terms and conditions of this Agreement, including, but not limited to, the Tender Offer that would require an extension or delay Conditions, unless the Company otherwise consents in writing, Sub will accept for payment and pay for the Common Stock in accordance with Rule 14e-1(c) of the then current Expiration DateExchange Act; provided, however, that this clause unless (vi) any Person has made an Acquisition Proposal (as hereinafter defined), or (ii) any of the conditions of the Offer set forth in Annex A hereto shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inhave been satisfied, the Offer Documents. Parent, Merger Sub and expiration date may not be extended beyond the Company each agrees promptly to correct any information provided by it for use in 10th business day after the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company's prior written consent, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period consent not to exceed the 13th Business Day after the last to occur of any date on which be unreasonably withheld (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Dateit being expressly understood and agreed that, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are conditions set forth in Annex A hereto shall have been satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) no Person has made an Acquisition Proposal, Sub shall affect any termination rights in ARTICLE SEVEN.
(e) In have the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereofright, Merger Sub may (in its sole discretion), until to extend the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor expiration date (through one or more than 20 Business Days in accordance with Rule 14d-11 promulgated under extensions) through the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable 10th business day after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”initial expiration date), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within Provided that this Agreement shall not have been terminated in accordance with ARTICLE 7 and that none of the events set forth in clauses (c) or (d) of the first paragraph of Annex B hereto shall have occurred and be continuing, within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 30.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of upon commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stockmake all deliveries, as mailings and telephonic notices required by Rule 14d-4 14d-3 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Common Stock sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common StockOffer, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner materially adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documentscounsel. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN7, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX New York Stock Exchange (the “NYSE AMEXNYSE”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of for up to ten five Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or the NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th period which ends on the 15th Business Day after the last to occur of any date on which that either (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten 10 Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten 10 Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten 10 Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN7.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, ) provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, shall (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide New York Stock Exchange Rule 303A.00 and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Dell Inc)
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement shall not have been terminated in Rule 14d-1(g)(3) promulgated under accordance with Article VIII and none of the Exchange Actevents or conditions set forth in Annex A shall have occurred and be existing, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub toSubcorp to commence, (and the Company Subcorp shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price")), or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offeras promptly as reasonably practicable, the “Per Share Amount”) and shallbut in no event later than five business days, on after the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits theretothis Agreement, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, Subcorp to accept for payment, and pay Subcorp shall accept for (after giving effect to any required withholding or stock transfer Tax)payment, all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the initial Expiration Date at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment all additional shares of Company Common Stock validly tendered during any subsequent offering period as provided in Section 1.1(c). Subcorp shall not accept for payment any shares of Company Common Stock tendered pursuant to the Offer unless there shall have been validly tendered and not validly withdrawn on prior to the Acceptance Date. The obligation Expiration Date such number of Merger Sub to accept for payment and to pay for any shares of Company Common Stock validly tendered shall be subject solely to that satisfy the satisfaction or waiver by Merger Sub of the Tender Offer ConditionsMinimum Condition. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub Subcorp expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or and to make waive any other changes in the terms and conditions condition of the Offer; provided, that without except the Minimum Condition. Without the prior written consent of the Company, Merger Sub Subcorp shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse addition to those set forth in Annex A, change or waive the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer ConditionsMinimum Condition or, except for the Minimum Conditionas provided in Section 1.1(c) or (vii) modify d), extend the expiration of the Offer beyond the initial Expiration Date, or amend any other term of the Offer, Offer in the case of clauses (vi) and (vii), in any a manner materially adverse to the holders Company Shareholders. The Per Share Amount shall be paid less any required withholding of Taxes, upon the terms and subject to satisfaction or waiver of the conditions of the Offer set forth in Annex A. The Company agrees that no shares of Company Common Stock held by the Company or any of its subsidiaries will be tendered in their capacities as holders of shares of Common Stockthe Offer.
(cb) No agreement or representation hereby is made or Subcorp shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed file with the SEC Securities and Exchange Commission (the "Commission") a Tender Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment Statement on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff Schedule TO with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant commenced, which shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the "Offer Documents") and use its reasonable best efforts to cause the Offer Documents to be disseminated to the Company Shareholders in accordance in all material respects with the terms applicable requirements of this Agreement, the “Expiration Date”)United States federal securities laws. Merger Sub shall not terminate or withdraw Parent and Subcorp will use their respective reasonable best efforts to cause the Offer other than Documents to comply in connection all material respects with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent applicable requirements of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.United States federal securities
Appears in 1 contract
The Offer. (a) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under Subject to the Exchange Act, “Business Days”) after the date hereofterms and conditions herein, Merger Sub shall, shall (and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the Exchange Act)) an a cash tender offer to purchase all of the issued and outstanding shares of the Company Common Stock of the Company at the purchase price of for $16.00 19.61 U.S. Dollars per share of Company Common Stock (such priceamount, or any higher price greater amount per share of Company Common Stock paid by Merger Sub pursuant to the offer, the Per Share Amount and such offer, as it may be amended from time to time pursuant to the terms hereof, the Offer) no later than ten (10) Business Days after the date hereof. Subject to satisfaction or, if permitted hereunder, waiver of the Offer, the “Per Share Amount”Tender Offer Conditions (as defined below) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”)hereof, Parent shall cause Merger Sub toto irrevocably accept for purchase, and Merger Sub shallshall irrevocably accept for purchase, upon the expiration all shares of the OfferCompany Common Stock that have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any event not more than the fourth (4th) Business Day) following the Expiration Date (as defined below). Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless and until this Agreement is terminated in accordance with Section 8.1.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for paymentpurchase, purchase, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered pursuant to the Offer (and not validly withdrawn on withdrawn) shall only be subject to the Acceptance Date. The obligation satisfaction or, if permitted hereunder, waiver pursuant to the terms hereof of Merger Sub to accept for payment and to pay for any (i) the condition (the Minimum Condition) that the number of shares of Company Common Stock validly tendered and not withdrawn prior to the Expiration Date (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), when added to any shares of Company Common Stock already owned by Parent or any of its subsidiaries, if any, shall be subject solely at least a majority of the shares of Company Common Stock then outstanding on a fully-diluted basis (assuming the exercise of all options and other rights to purchase shares of Company Common Stock regardless of exercise price, vesting schedule or other terms or conditions thereof, but excluding any Company Stock Options the satisfaction or waiver by Merger Sub holders of which have, as of the Acceptance Date, entered into the option cancellation agreements described in Section 3.3(a)) and (ii) the other conditions set forth in Annex A hereto (the conditions described in clauses (i) and (ii) are collectively referred to as the Tender Offer Conditions). The Per Share Amount shall be net to Tender Offer Conditions are for the seller in cashsole benefit of Parent and Merger Sub, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of and Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to amend or waive any Tender Offer such condition (other than the Minimum Condition, which may not be amended or waived), to increase the Per Share Amount or payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease Company no change may be made that decreases the Per Share Amount or change (except as provided in Section 1.1(h)), changes the form of consideration payable in the Offer, imposes conditions to the Offer (other than by adding consideration)in addition to the Tender Offer Conditions, (ii) decrease decreases the number of shares of Company Common Stock subject to be purchased in the Offer, (iii) amend reduces the time period during which the Offer shall remain open, or waive satisfaction of the Minimum Condition (as defined in Annex B)modifies, (iv) impose additional conditions to amends or supplements the Offer or modify the Tender Offer Conditions in any conditions to the Offer in a manner adverse to the holders Company Stockholders.
(c) Upon the terms and subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time, on the later of shares (i) the twentieth (20th) Business Day (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) following commencement (determined in accordance with Rule 14d-2 under the Exchange Act) of Common Stockthe Offer and (ii) the second (2nd) Business Day following the Solicitation Period End Date (the Initial Expiration Date), unless the Initial Expiration Date has been extended pursuant to, and in accordance with, the provisions of Section 1.1(d) or as required by Applicable Law or the interpretations of the Securities and Exchange Commission (the SEC) (the Initial Expiration Date, or such the later time and date on which the Initial Expiration Date has been extended pursuant to, and in accordance with, this Agreement, the Expiration Date).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, except the last sentence of this Section 1.1(d), unless this Agreement shall have been terminated in accordance with Section 8.1, (vi) make any change in Merger Sub shall extend the Offer that would require an extension for any period required by any Applicable Law, or delay any rule, regulation, interpretation or position of the SEC or its staff or the NYSE MKT in any such case that is applicable to the Offer, and (ii) if, on the initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then current Merger Sub shall extend (and re-extend) the Offer and its Expiration DateDate beyond the initial Expiration Date or such subsequent date for successive extension periods of up to ten (10) Business Days each, or for such longer period as the parties may agree, in order to permit the satisfaction of all of the Tender Offer Conditions; provided, however, that if, at any Expiration Date the only Tender Offer Condition that is not satisfied or waived is the Minimum Condition, then Merger Sub shall not be required to extend the Offer for more than two subsequent extension periods after the first such Expiration Date of ten (10) Business Days each, or for such longer period as the parties may agree. Merger Sub may, in its sole discretion, following the Acceptance Date, extend the Offer for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (as defined below) may, in Merger Sub’s sole discretion, provide for such a right; provided, however, that Merger Sub shall not commence any “subsequent offering period” after the Acceptance Date if the Merger can be effected pursuant to Section 251(h) of the DGCL. Notwithstanding the above, in no event shall Merger Sub be required to extend the Offer beyond the Offer Outside Date or so extend the Offer without the consent of the Company.
(e) In the event that this clause Agreement is terminated pursuant to Section 8.1, Merger Sub shall (vand Parent shall cause Merger Sub to) promptly (and in any event within one Business Day of such termination), irrevocably and unconditionally terminate the Offer and Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the registered holder thereof.
(f) Subject to the terms and conditions of this Agreement and the Offer, Merger Sub (or Parent on Merger Sub’s behalf) shall irrevocably accept for purchase and pay for all shares of Company Common Stock validly tendered and not limit withdrawn as soon as practicable after the right Expiration Date (the time and date of the acceptance for purchase, the Acceptance Date). If the Per Share Amount (or any portion thereof) is to be paid to a person other than the person in whose name the tendered shares of Company Common Stock not represented by certificates (Book Entry Shares) or certificates that, immediately prior to the Effective Time, represented outstanding shares of Company Common Stock (the Certificates) are registered, the amount of any stock transfer or other similar taxes (whether imposed on the registered holder(s), or such other person, or otherwise) payable on account of such issuance or transfer shall be deducted from the Per Share Amount payable, unless evidence satisfactory to Merger Sub of the payment of such taxes or exemption therefrom is submitted. If any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and upon providing an indemnity reasonably satisfactory to Parent and Merger Sub, Merger Sub will pay the Per Share Amount deliverable in respect of the shares of Company Common Stock that were evidenced by the lost, stolen or destroyed Certificate. No interest or dividends shall be paid or accrued on any portion of the Per Share Amount.
(g) As promptly as practicable on the date of commencement of the Offer, Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the Schedule TO) with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the Offer to Purchase), form of the related letter of transmittal, summary advertisement and any other ancillary documents pursuant to which the Offer will be made (the Schedule TO, the Offer to Purchase and such other documents, together with all exhibits, supplements and amendments thereto, being referred to herein collectively as the Offer Documents). Merger Sub shall cause the Offer Documents to be disseminated to Company Stockholders as and to the extent required by applicable federal securities laws. Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, cause the Offer DocumentsDocuments to comply in all material respects with the applicable requirements of federal securities laws. Each of Parent, Merger Sub Sub, and the Company each agrees promptly agree to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. , and Parent and Merger Sub shall further agree to use reasonable best efforts to cause the Schedule TO, as so corrected or supplementedcorrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected or supplementedcorrected, to be promptly disseminated to the Company’s stockholdersCompany Stockholders, in each case in all material respects as and to the extent required by applicable Federal federal securities Lawslaws. The Company shall promptly furnish to Merger Sub and Parent all information concerning the Company that is required or reasonably requested by Merger Sub or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 1.1(g). Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on any the Schedule TO and the Offer Documents (including each amendment or supplement thereto) time before they are any such document is filed with the SEC. , and Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documentscounsel. In addition, Parent and Merger Sub shall agree to (i) provide the Company and its counsel with (in writing, if written), and shall consult with the Company regarding, any written comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The of such comments, (ii) unless there has been a Change of Recommendation, provide a reasonably detailed description of any oral comments Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel shall be given a reasonable opportunity to review and comment upon on any written response to such comments or any proposed responses before they are filed amendment to the Offer Documents prior to the filing thereof with the SEC. Parent and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(dh) The initial expiration If, between the date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, the Per Share Amount applicable to such shares of Company Common Stock shall take all action requested by Parent necessary be adjusted to elect to be treated as a “controlled company” as defined by the extent appropriate; provided, however, that this Section 801(a1.1(h) shall not affect or supersede the provisions of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such statusSection 6.3(a).
Appears in 1 contract
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events or conditions set forth in Annex A shall have occurred and be existing and shall not have been waived in writing by Parent or Merger Sub (as such term is defined the conditions set forth in Rule 14d-1(g)(3) promulgated under Annex A, the Exchange Act, “Business DaysTender Offer Conditions”) after the date hereof), Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the U.S. Securities Exchange Act) an offer to purchase all outstanding shares Act of Common Stock of 1934, as amended (together with the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offerrules and regulations thereunder, the “Per Share AmountExchange Act”)) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made therebyon August 31, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof2007. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without Without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount Offer Price or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse addition to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for waive or amend the Minimum Condition) or (vii) modify Condition or amend any other term of the Offer, Offer in the case of clauses (vi) and (vii), in any a manner which is materially adverse to the holders Company Shareholders; provided that Merger Sub expressly reserves the right to increase the Offer Price and to waive any of the Tender Offer Conditions, other than the Minimum Condition. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in their capacities as holders of shares of Common Stockthe Offer.
(cb) No agreement Merger Sub shall, and Parent shall cause Merger Sub to, file with the U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date that the Offer is commenced, which Tender Offer Statement shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the “Offer Documents”) and, subject to the Company’s compliance with Section 1.02(c), cause the Offer Documents to be disseminated to the Company Shareholders in accordance with the applicable requirements of the U.S. federal securities Laws. Parent and Merger Sub agree that the Offer Documents shall comply in all material respects with the applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the Company Shareholders and on the Acceptance Date, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant, agreement, representation hereby or warranty is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated incorporation by reference in, in the Offer Documents. ParentThe Company, Parent and Merger Sub and the Company each agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. , and Parent and Merger Sub shall further agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and Company Shareholders to the extent required by applicable Federal securities LawsLaw. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 1.01(b) . The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed and any amendments thereto in advance of filing with the SEC. SEC or dissemination to the Company Shareholders, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documentscounsel. Parent and Merger Sub shall (i) provide the Company and its counsel with (in writing, if written), and shall consult with the Company regarding, a copy of any written comments (written or oral) that may be received by Parent, telephonic notification of any oral comments Parent or Merger Sub or their counsel may receive from the SEC or its staff (the “SEC Staff”) with respect to the Offer Documents as promptly as practicable after the receipt thereof. The , (ii) consult in good faith with the Company and its counsel shall be given prior to responding to any such comments, and (iii) provide the Company and its counsel with a reasonable opportunity to review copy of any written responses thereto and comment upon telephonic notification of any proposed oral responses before they are filed with the SECthereto of Parent and Merger Sub or their counsel.
(dc) The initial expiration date of Subject to the terms and conditions thereof, the Offer shall be at remain open until midnight, New York City time, on at the 20th end of the twentieth (20th) Business Day following beginning with (and including) the commencement of date that the Offer is commenced (determined using Rules 14d-1(g)(3in accordance with Rule 14d-1(g) and 14d-2 promulgated (3) under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). , unless Merger Sub shall not terminate or withdraw have extended the period of time for which the Offer other than is open pursuant to, and in connection with accordance with, the effective termination following provisions of this Agreement sentence or as may be required by applicable Law, in accordance with Section 7.1 hereof. Notwithstanding which event the foregoingterm “Expiration Date” shall mean the latest time and date as the Offer, unless this Agreement is terminated in accordance with ARTICLE SEVENas so extended may expire; provided, Merger Subhowever, without Parent or that Merger Sub obtaining shall have the consent of right, in its sole discretion, but not the Company, obligation to (i) shall extend the Expiration Date Offer for any period required by the rules and regulations one or more periods of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date not more than five Business Days each if, on any then at the scheduled Expiration Date, any of the Tender Offer Conditions is shall not have been satisfied or waived by Parent, for such periods of up to ten Business Days at a time (waived; or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In but the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Company Common Stock to enable that have been validly tendered and not withdrawn in the Offer, together with any shares of Company Common Stock then owned by Parent, is less than 90% of the outstanding shares of Company Common Stock, commence a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days period (as provided in accordance with Rule 14d-11 promulgated under the Exchange Act.
) for three (f3) Promptly upon the satisfaction or waiver by to twenty (20) Business Days to acquire outstanding shares of Company Common Stock. Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after SEC or of the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant Staff applicable to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. Provided that (a) Within ten business days (as such term is defined this Agreement shall not have been terminated in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date accordance with Article VI hereof, Merger Sub shall, and Parent (b) the Share Tender Agreements shall cause Merger Sub to, (and the Company shall cooperate have been executed simultaneously with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and (c) the Board of Directors has taken action to eliminate any requirement that the satisfaction or waiver Salary Continuation Agreements Trust be fully funded for all current benefit obligations upon a change of control of the conditions Company, and so long as none of the events set forth in Annex B A hereto (the “"Tender Offer Conditions”)") shall have occurred and are continuing, Parent shall cause Merger Sub toas promptly as practicable, and Merger Sub shall, upon but in no event later than the expiration fifth business day after the public announcement of the execution of this Agreement, Sub shall commence the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation obligations of Merger Sub to accept for payment and promptly to pay for any shares of Common Stock validly tendered shall be subject solely only to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount , any of which may be waived by Parent and Sub; PROVIDED, HOWEVER, that, without the consent of the Company, Sub shall be net not waive the condition that there shall have been validly tendered and not validly withdrawn prior to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No expiration of the Offer a number of shares of Common Stock held by which represent at least 70% of the total voting power of all shares of capital stock of the Company or its Subsidiaries shall outstanding on a fully diluted basis (the "Minimum Condition"). The Tender Offer Conditions are for the sole benefit of Parent and Sub and may be tendered pursuant asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Condition and, subject to the Offer.
(b) preceding sentence, may be waived by Parent on behalf of Merger and Sub in whole or in part. Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer, including, without limitation, except as provided below, to extend the Offer beyond any scheduled expiration date; providedPROVIDED, that HOWEVER, without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) amend modify or waive satisfaction of add to the Minimum Condition (as defined conditions set forth in Annex B), A or (iv) impose additional conditions to change the Offer or modify any conditions to the Offer in a manner adverse to the holders form of shares of Common Stock, (v) make any change consideration payable in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, the Offer may not be extended beyond any scheduled expiration date unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is shall not satisfied or waived by Parenthave been satisfied; PROVIDED, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside DateHOWEVER, (xi) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) even if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived have not been satisfied, the Offer may not be extended beyond the three month anniversary of the date of commencement of the Offer and it is permitted under applicable Law (ii) if the Tender Offer Conditions have been satisfied, then the Offer may be extended for an additional five business days so long as at the time of such extension, all conditions to accept for payment and pay for validly tendered Sub's obligations to purchase shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerare irrevocably waived.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Geon Co)
The Offer. (a) Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, The Merger Sub shall, and Parent shall cause Agreement provides that Merger Sub to, (and the Company shall cooperate with Merger Sub to) Subsidiary will commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made therebythat, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to upon the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and subject to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), Merger Subsidiary will purchase all shares of Common Stock Shares validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance DateOffer. The obligation of Merger Sub Subsidiary to accept for payment and to pay for any shares of Common Stock Shares validly tendered shall be subject solely prior to the expiration of the Offer is conditioned upon satisfaction of the Minimum Condition and the satisfaction or waiver by Merger Sub of the Tender Offer Conditionsconditions described in Annex A to the Merger Agreement. The Per Share Amount shall be net Merger Agreement provides that Merger Subsidiary may not amend or waive the Minimum Condition, or decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of Shares sought in the Offer, add to or change conditions to the seller in cash, without interest, subject to reduction for any applicable withholding Offer or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes change in the terms and or conditions of the Offer; provided, that Offer without the prior written consent of the Company. Notwithstanding the foregoing provisions, Merger Sub shall not (i) decrease if on the Per Share Amount or change the form scheduled expiration of consideration payable in the Offer (other than by adding considerationas it may be extended), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional all conditions to the Offer have not been satisfied or modify waived, the Offer may be extended from time to time, unless any conditions applicable waiting period under the HSR Act has not expired or been terminated, in which case the Offer will be extended from time to time until the earlier of the consummation of the Offer or August 28, 2000. If an insufficient number of Shares are tendered pursuant to this Offer prior to the Offer in Expiration Date and the Merger Agreement is terminated as a manner adverse consequence of the failure to satisfy the holders Minimum Condition, the Company has agreed to pay Parent a termination fee of shares of Common Stock$1,000,000. STOCK OPTION AGREEMENT. The Merger Agreement provides that, (v) make any change if following a Subsequent Offering Period, if any, Merger Subsidiary has acquired Shares purchased in the Offer that would require an extension or delay and such Shares represent less than 90% of the then current Expiration Date; providedShares outstanding on a fully diluted basis, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub Subsidiary and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given will enter into a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City timestock option agreement, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such datecustomary terms, or such subsequent date pursuant to which the Company will grant to Merger Subsidiary an option to purchase that number of Shares equal to the number of Shares that, when added to the number of Shares owned by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and its affiliates immediately following expiration of the Offer is extended pursuant to and Subsequent Offering Period, results in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent Subsidiary's beneficially owning 90% of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any Shares then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub outstanding on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerfully diluted basis.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within Subject to the terms and conditions of this Agreement and provided that this Agreement has not been terminated in accordance with Article VIII and that the Company shall have complied with its obligations under Section 1.01(b) and 1.02(c), as promptly as practicable (but in no event later than ten business days after the date of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (as such term is defined together with the rules and regulations promulgated thereunder, the “Exchange Act”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer are subject to the satisfaction or waiver of the conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of the Offer shall be 12:00 midnight, New York City time, on the 20th business day following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under of the Exchange Act). Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (iv) add to the Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise permitted under this Agreement, terminate or extend the Offer, (vi) change the form of consideration payable in the Offer, (vii) otherwise amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders of Company Common Stock in any material respect or (viii) provide any “Business Days”) after subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, subject to the parties’ respective rights to terminate this Agreement under Article VIII and provided that in no event shall Merger Sub be required to extend the expiration date hereofof the Offer to any date later than the Outside Date, Merger Sub shall, and Parent shall cause Merger Sub to, (A) extend the Offer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company), if at the scheduled expiration date of the Offer any of the Offer Conditions (other than the Minimum Tender Condition) shall not have been satisfied or waived, until such time as such conditions shall have been satisfied or waived, and (B) extend the Offer for the minimum period required by any Law, any rule, regulation or interpretation or position of the SEC or the staff thereof or any rules and regulations of the NASDAQ Global Market (“Nasdaq”) applicable to the Offer. In addition, subject to the parties’ respective rights to terminate this Agreement under Article VIII, if at the otherwise scheduled expiration date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Company Minimum Tender Condition shall cooperate with not have been satisfied, Merger Sub may, and at the request of the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company); provided, that in no event shall Merger Sub (1) commence be required or permitted to extend the expiration date of the Offer to any date later than the Outside Date or (2) be required or permitted to extend the expiration date of the Offer more than two times pursuant to this sentence. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer and, in any event, no more than three business days after the Acceptance Time. The time at which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is referred to as the “Acceptance Time”. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in accordance with Section 8.01. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.01(a) shall affect any termination rights set forth in Section 8.01.
(b) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price), or any higher price per share of Common Stock paid by Parent and Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, shall file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and cause a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with which the Offer (will be made, together with any supplements or amendments thereto, the “Offer Documents”), ) and shall consummate disseminate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Company Common Stock, (v) make any change Stock as and to the extent required by applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by applicable Law to be set forth in the Offer that would require an extension Documents or delay of the then current Expiration Date; providedas reasonably requested by Parent, however, that this clause (v) shall not limit the right of so as to enable Parent and Merger Sub to extend the Expiration Date as required or permitted by comply with their respective obligations under this Section 1.1(d1.01(b), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term . Each of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TOOffer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer DocumentsLaw. Parent and Merger Sub shall provide the Company and its counsel with (in writing, if written)copies of any written comments, and shall consult with inform the Company regardingand its counsel of any oral comments, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereofof such comments. The Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment upon on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give good faith consideration to any proposed responses before they are filed with comments reasonably made by the SECCompany or its counsel.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(gd) Promptly Notwithstanding anything to the contrary herein, Parent and Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as Parent or Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign Tax Law. Amounts so withheld and paid over to the appropriate taxing authority shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.
(e) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring or having a record date on or after the date hereof and prior to the Acceptance DateTime, in each case, effected in compliance with Section 5.01, and the Offer Price as so adjusted shall provide to the holders of Company shall take all action requested Common Stock the same economic effect as contemplated by Parent necessary this Agreement prior to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such statusaction.
Appears in 1 contract
Sources: Merger Agreement (Sapient Corp)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been --------- terminated in accordance with Article VI hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have ------- occurred and be continuing, as promptly as practicable, but in no event later than the fifth Business Day (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”Section 6.14 hereof) after the date hereofof this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer the Offer. The obligations of Sub to, and of Parent to purchase all outstanding cause Sub to, accept for payment and to pay for any shares of Common Stock (and associated Rights) tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Sub; provided, that the Minimum Condition (as defined in Annex A hereto) may not be waived by Parent or Sub without the prior written ------- consent of the Company at Company. Sub expressly reserves the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant right to modify the terms of the Offer; provided, that, without the “Per Share Amount”consent of the Company, neither Parent nor Sub shall (i) reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) add to the Tender Offer Conditions, (iv) modify the Tender Offer Conditions or any other term or condition of the Offer in a manner that is adverse to the holders of Common Stock, (v) change the form of consideration payable in the Offer or (vi) except as provided in the last two sentences of this subsection (a), extend the Offer beyond any scheduled expiration date. Parent and shallSub covenant and agree that, on the terms and subject to the conditions of this Agreement, including, but not limited to, the Tender Offer Conditions and the last sentence of this Section 1.01(a), unless the Company otherwise consents in writing, Sub will accept for payment and pay for the Common Stock (and associated Rights) as soon as (but in any event within one Business Day after the Offer terminates) it is permitted to do so under applicable law. Parent and Sub agree that if Sub is unable to consummate the Offer on the initial scheduled expiration date of commencement due to the failure of the Tender Offer but after affording Conditions set forth in the Company first sentence of Annex A to be ------- satisfied or waived, Sub shall, unless this Agreement has been terminated in accordance with its terms, extend the Offer and set a subsequent scheduled expiration date, and shall continue to so extend the Offer and set subsequent scheduled expiration dates, until the termination of this Agreement in accordance with its counsel reasonable opportunity terms; provided, that any such extended expiration date shall not be later than the earlier of (x) 20 Business Days following the previously scheduled expiration date and (y) the date on which Sub reasonably believes that all Tender Offer Conditions will be satisfied or waived.
(b) As soon as reasonably practicable on the date that the Offer is commenced, Parent and Sub shall file, and Parent shall cause Sub to review file, with the Securities and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file Exchange Commission (the "Commission") a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the "Schedule TO") with respect to the Offer. The Schedule TO shall contain (included as an exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a form of the related letter of transmittal (the "Letter of Transmittal"), as well as all other information and exhibits required by law (which Schedule TO, Offer to Purchase, Letter of Transmittal and such other information and exhibits, together with any supplements or amendments thereto, are referred to herein collectively as the “"Offer Documents"). The Company and its counsel shall be given the opportunity to review and comment upon the Schedule TO”) and all other necessary documents TO prior to its filing with the Securities Commission. Parent and Exchange Commission (Sub represent and warrant that the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal federal securities Laws. Subject laws and, on the date filed with the Commission and the date first published, sent or given to the terms and conditions Company's shareholders, shall not contain any untrue statement of this Agreement and a material fact or omit to state any material fact required to be stated therein or necessary in order to make the satisfaction or waiver statements therein, in light of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”)circumstances under which they are made, not misleading, except that no representation is made by Parent shall cause Merger or Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect with respect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held information supplied by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to timeofficers, subject to Section 1.1(c) and Section 1.1(d), directors or affiliates in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable writing for inclusion in the Offer (other than by adding consideration)Documents. If, (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions at any time prior to the Offer completion, expiration or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term termination of the Offer, any event occurs which should be described in the case of clauses (vi) and (vii), in any manner adverse an amendment or supplement to the holders of shares of Common Stock Schedule TO or any amendment or supplement thereto, Parent and Sub will, and Parent will cause Sub to, file and disseminate, as required, an amendment or supplement which complies in their capacities as holders of shares of Common Stock.
(c) No agreement all material respects with the Exchange Act and the rules and regulations thereunder and any other applicable laws. Prior to its filing with the Commission, the amendment or representation hereby is made or supplement shall be made by Parent or Merger Sub with respect delivered to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and its counsel and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable the opportunity to review comment thereon. The written information supplied or to be supplied by Parent and comment on Sub for inclusion in the Schedule 14D-9 (as defined in Section 1.02 hereof) of the Company will not contain any Offer Documents (including each amendment untrue statement of a material fact or supplement thereto) before omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they are filed with the SECmade, not misleading. Each of Parent and Merger Sub shall give reasonable and good faith consideration agrees to any comments or other additions, deletions or changes made by provide the Company and its counsel with respect to copies of any Offer Documents. written comments Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC Commission or its staff with respect to the Offer Documents promptly after the receipt thereof. The of such comments and shall provide the Company and its counsel shall be given a reasonable an opportunity to review and comment upon any proposed responses before they are filed participate, including by way of discussions with the SEC.
(d) The initial expiration date of the Offer shall be at midnightCommission or its staff, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any response of the Tender Offer Conditions is not satisfied or waived by Parent, for Parent and Sub to such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENcomments.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and that none of the events set forth in Exhibit A hereto shall have occurred or be existing (unless such event shall have been waived by Acquisition Sub), Acquiror shall cause Acquisition Sub to commence, and Acquisition Sub shall commence, the Offer at the Per Share Amount as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) promptly as reasonably practicable after the date hereof, Merger Sub shall, and Parent but in no event later than five business days after the public announcement of Acquisition Sub's intention to commence the Offer. The initial expiration date for the Offer shall cause Merger Sub to, (and be the Company shall cooperate with Merger Sub to) commence (within 20th business day following the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms commencement of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Acquisition Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be Shares tendered pursuant to the Offer.
Offer shall be subject only to (bi) Parent the condition (the "Minimum Condition") that at least the number of Shares that constitute a majority of the then outstanding Shares (determined on behalf a fully-diluted basis (as defined herein)) shall have been validly tendered and not withdrawn prior to the expiration of Merger the Offer and (ii) the satisfaction or waiver, in whole or in part by Acquisition Sub in its sole discretion, of the other conditions set forth in Exhibit A hereto. Acquisition Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer such condition (other than the Minimum Condition), to increase the Per Share Amount or Amount, and to make any other changes in the terms and conditions of the Offer; providedexcept that (notwithstanding Section 8.03), that without the prior written consent of the CompanyTarget, Merger no change may be made by Acquisition Sub shall not which (iA) decrease decreases the Per Share Amount (or change changes the form of consideration payable to be paid in the Offer (other than by adding considerationOffer), (iiB) decrease reduces the maximum number of shares of Common Stock Shares to be purchased in the Offer, (iiiC) amend adds to or waive satisfaction of modifies the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer set forth in Exhibit A hereto, or modify (D) extends, amends or changes any conditions to other terms of the Offer in a any manner materially adverse to the holders of shares Shares. Notwithstanding the foregoing sentence, Acquisition Sub may, without the consent of Common StockTarget, (vi) make any change in extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Acquisition Sub's obligations to purchase the Shares have not been satisfied or waived, until such time as such conditions are satisfied or waived, (ii) extend the Offer from time to time for up to a maximum of an aggregate of 15 business days beyond the latest expiration date that would require an extension or delay otherwise be permitted in this sentence, if on such expiration date there shall not have been tendered at least 90% of the then current Expiration Date; providedoutstanding Shares, howeverand/or (iii) extend the Offer for any period required by any rule, that regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law. Notwithstanding the foregoing, (x) the Offer may not, without Target's prior written consent, be extended beyond the date of termination of this Agreement pursuant to Section 8.01 and (y) the Offer may not, without Target's prior written consent, be extended pursuant to clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(di), above, if the failure to satisfy any condition was caused by a material breach by Acquiror or Acquisition Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditionsincluding, except for without limitation, the Minimum Condition) or (vii) modify or amend any other term ), Acquisition Sub shall accept for payment and pay, as promptly as practicable after expiration of the Offer, in the case Per Share Amount for all Shares validly tendered and not withdrawn. Acquisition Sub may, at any time, transfer or assign to one or more corporations directly or indirectly wholly-owned by Acquiror the right to purchase all or any portion of clauses (vi) and (vii), in any manner adverse the Shares tendered pursuant to the holders Offer, but any such transfer or assignment shall not relieve Acquisition Sub of shares its obligations under the Offer or prejudice the rights of Common Stock in their capacities as holders of shares of Common Stocktendering stockholders to receive payment for Shares validly tendered and accepted for payment. Acquiror shall provide or cause to be provided to Acquisition Sub on a timely basis all funds necessary to accept for payment, and pay for, all Shares that Acquisition Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(cb) No agreement or representation hereby is made or As soon as reasonably practicable on the date of commencement of the Offer, Acquisition Sub shall be made file with the SEC and disseminate to holders of Shares to the extent required by Parent or Merger Sub law a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to information supplied by the Company expressly for inclusion in, Offer and the other Transactions (as hereinafter defined). The Schedule 14D-1 shall contain or with respect to Company information derived from the Company SEC Filings that is included or incorporated shall incorporate by reference inan offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). ParentAcquiror, Merger Acquisition Sub and the Company each agrees promptly Target agree to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that it which shall have become false or misleading in any material respect. Parent , and Merger Acquiror and Acquisition Sub shall further agree to take all steps necessary to cause the Schedule TO, 14D-1 as so corrected or supplemented, to be filed with the SEC and the other Offer Documents, Documents as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities Lawslaws. The Company Target and its counsel shall be given a reasonable an opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed and any amendments thereto prior to the filing thereof with the SEC. Parent Acquiror and Merger Acquisition Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company will provide Target and its counsel with respect to a copy of any Offer Documents. Parent and Merger written comments or telephonic notification of any verbal comments Acquiror or Acquisition Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The Company thereof and will provide Target and its counsel shall be given with a reasonable opportunity to review copy of any written responses and comment upon telephonic notification of any proposed responses before they are filed with verbal response of Acquiror, Acquisition Sub or their counsel. In the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of event that the Offer is extended pursuant to terminated or withdrawn by Acquisition Sub, Acquiror and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Acquisition Sub shall not terminate or withdraw cause all tendered Shares to be returned to the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent registered holders of the Company, (i) shall extend the Expiration Date for any period required Shares represented by the rules and regulations of the SEC certificate or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice certificates surrendered to the Paying Agent, Agent (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such statusherein).
Appears in 1 contract
The Offer. (a) Within Provided that this Agreement shall not have been terminated in accordance with Article VIII, as promptly as practicable and in any event on or before the date that is ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) Days after the date hereof, Merger Acquisition Sub shall, shall (and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Acquisition Sub to) commence (commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer to purchase all the outstanding Common Stock (the “Offer Documents”other than shares cancelled or converted pursuant to Section 3.1(a), and shall consummate the Offer, subject ) at a price per share equal to the terms and conditions hereof and thereofOffer Price. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration consummation of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Acquisition Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, shall be subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not only to: (i) decrease the Per Share Amount or change the form of consideration payable there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (other than by adding consideration)excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, (ii) decrease together with the number of shares of Common Stock to be purchased (if any) then owned by Parent or its subsidiaries, represents a majority of the shares of Common Stock then outstanding (collectively, the “Minimum Condition”); (ii) this Agreement not having been terminated in accordance with its terms (the Offer, “Termination Condition”); and (iii) amend the satisfaction, or waive waiver by Parent or Acquisition Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”).
(b) Subject to the satisfaction of the Minimum Condition (as defined in Annex B)and the Termination Condition and the satisfaction, (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stockwaiver by Parent or Acquisition Sub, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Acquisition Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC (and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Acquisition Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer on or promptly after the applicable Expiration Date. Subject to Section 3.7, the Offer Price payable in respect of each share of Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest.
(c) The Offer shall be made by means of an offer to purchase (the date “Offer to Purchase”) that describes the terms and conditions of acceptance for paymentthe Offer in accordance with this Agreement, including the “Acceptance Date”)Offer Conditions. Unless previously approved by the Company in writing, which acceptance may be by oral notice to Parent and Acquisition Sub shall not: (i) decrease the Paying AgentOffer Price, (ii) on change the Acceptance Dateform of consideration payable in the Offer, deposit or cause to be deposited with (iii) change the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted number of shares of Common Stock to be purchased in the Offer, (iv) amend or waive the Minimum Condition, the Termination Condition or the conditions set forth in clauses (b) or (c)(i) of Annex I, (v) add any condition to the Offer or any term that is adverse to the holders of Common Stock, (vi) extend the expiration of the Offer except as required or permitted by this Section 2.1, (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Common Stock.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer, as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (iiithe Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If as soon as practicable following of any then scheduled Expiration Date, any Offer Condition has not been satisfied or, to the extent waivable by Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such depositlonger period of up to twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in order to permit the satisfaction of the Offer Conditions; provided, however, that Acquisition Sub shall not be required to extend the Offer beyond the Outside Date, unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 8.1(b), and shall not extend the Offer beyond the Outside Date without the Company’s prior written consent. In addition, Acquisition Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or the NASDAQ; provided, however, that Acquisition Sub shall not be required to extend the Offer beyond the Outside Date, unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 8.1(b), and shall not extend the Offer beyond the Outside Date without the Company’s consent.
(f) Acquisition Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly terminate the Paying Agent to pay for all Offer and shall not acquire the shares of Common Stock so accepted for paymentpursuant thereto. Parent If the Offer is terminated by Acquisition Sub, or this Agreement is terminated prior to the Acceptance Time, Acquisition Sub shall provide or promptly return, and shall cause any depositary acting on behalf of Acquisition Sub to be provided to Merger Sub on a timely basis the funds necessary to purchase any return, in accordance with applicable Law, all tendered shares of Common Stock that Merger Sub becomes obligated to purchase pursuant have not then been purchased in the Offer to the Offerregistered holders thereof.
(g) Promptly after As soon as practicable on the Acceptance Datedate of the commencement of the Offer, Parent and Acquisition Sub shall:
(i) file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”);
(ii) deliver a copy of the Schedule TO, including all exhibits thereto, to the Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
(iii) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail a copy of the Schedule TO, to the NASDAQ in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and
(iv) cause the Offer Documents to be disseminated to all holders of shares of Common Stock as and to the extent required by all applicable Laws, including the Exchange Act.
(h) The Schedule TO shall include as exhibits, the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, and a form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, being referred to herein as the “Offer Documents”). Subject to the provisions of Section 6.4, the Company consents to the inclusion of a description of the Company Recommendation in the Schedule TO and the Offer Documents. Parent and Acquisition Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents, if and to the extent that such information shall take all action requested have become false or misleading in any material respect or as otherwise required by applicable Law, and Parent necessary and Acquisition Sub agree to elect cause the Offer Documents, as so corrected, to be treated filed with the SEC and disseminated to holders of shares of Common Stock, in each case as and to the extent required by all applicable Laws, including the Exchange Act. The Company and its counsel shall be given a “controlled company” as defined reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and Acquisition Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by Section 801(a) the Company and its counsel. In addition, Parent and Acquisition Sub shall provide the Company and its counsel promptly with copies of any written comments, and shall inform them of any oral comments, that Parent, Acquisition Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any proposed written or oral responses to the Schedule TO and Offer Documents and Parent and Acquisition Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel and to participate in any substantive telephonic communications with the staff of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such statusSEC related thereto.
Appears in 1 contract
The Offer. (a) Within ten Provided that this Agreement shall not have been terminated in accordance with Section 8.1, as promptly as practicable, but in no event later than the fifth business days (as such term is defined in Rule 14d-1(g)(3) promulgated under day following the Exchange Actpublic announcement of the terms of this Agreement, “Business Days”) after Acquisition shall commence the date hereof, Merger Sub Offer. Acquisition shall, and Parent shall cause Merger Sub Acquisition to, (and subject only to the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock prior satisfaction or waiver of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms conditions of the Offer, the “accept for payment Shares validly tendered as soon as it is legally permitted to do so under applicable law. As promptly as practicable after such acceptance, Acquisition shall, subject to applicable law, pay for such Shares. The Per Share Amount”Amount payable in the Offer shall be paid net to the seller in cash, upon the terms and subject to the conditions of the Offer. Acquisition shall not, without the consent of the Special Committee, accept for payment any Shares tendered pursuant to the Offer unless a number of Shares shall have been validly tendered and not withdrawn prior to the expiration of the Offer such that, upon purchase of such Shares by Acquisition, Acquisition and Parent, collectively, would be the owners of Shares representing at least 81.07% of the Fully Diluted Shares (as defined on Section 9.9) (the "First Minimum Condition"). In addition to the First Minimum Condition, the obligation of Acquisition to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions (i) that a number of Shares shall have been validly tendered and not withdrawn prior to the expiration date of the Offer such that, upon purchase of such Shares by Acquisition, Acquisition and Parent, collectively, would be the owners of Shares representing at least 90% of the Fully Diluted Shares as of the expiration date of the Offer (the "Second Minimum Condition") and (ii) that are set forth in Annex A to this Agreement. It is agreed that the Second Minimum Condition and the other conditions set forth in Annex A are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances unless the failure of any such condition was caused by any breach by Parent or Acquisition of this Agreement. Acquisition expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition (including, without limitation, the Second Minimum Condition, but not including the First Minimum Condition) or to increase the cash price per Share payable in the Offer; provided that no change may be made that decreases the Per Share Amount payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer or imposes conditions to the Offer in addition to those set forth in Annex A. If requested to do so by Parent or Acquisition, the Company (acting at the direction of the Special Committee) may, in the sole discretion of the Special Committee, waive the First Minimum Condition and Acquisition may thereafter accept for payment any and all Shares validly tendered and not withdrawn prior to the expiration of the Offer whether or not the First Minimum Condition is satisfied.
(b) The initial expiration date of the Offer shall be midnight on the 20th business day following commencement of the Offer. The foregoing notwithstanding, Acquisition may, without the consent of the Company, extend the Offer (i) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (ii) if at any scheduled expiration date any of the conditions to the Offer set forth in paragraphs (a) - (e) of Annex A have not been satisfied or waived, until such time as all of such conditions shall have been satisfied or waived, or (iii) in the event all of the conditions to the Offer shall have been satisfied or waived, other than the Second Minimum Condition, for a period or periods aggregating not more than 40 business days after the later of (A) the initial expiration date of the Offer and (B) the date on which all of the conditions set forth in paragraphs (a) - (e) of Annex A shall have been satisfied or waived. If at any scheduled expiration date of the Offer the Second Minimum Condition shall not have been satisfied, then, at the request of the Company (acting at the direction of the Special Committee, which request shall subsequently be confirmed in writing), Acquisition shall, and Parent shall cause Acquisition to, extend the Offer for a period or periods aggregating not more than 40 business days, subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1. In addition, if at any scheduled expiration date of the Offer, a condition set forth in paragraph (c) or (d) of Annex A hereto shall not have been satisfied but all of the other conditions set forth in paragraphs (a) - (e) of Annex A shall then have been satisfied, then, at the request of the Company (acting at the direction of the Special Committee, which request shall subsequently be confirmed in writing) and so long as the Company is using its reasonable best efforts to cause such conditions to become satisfied, Acquisition shall, and Parent shall cause Acquisition to, extend the Offer for up to an additional 20 business days, subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1. Subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1, Acquisition shall not terminate or withdraw the Offer prior to any scheduled expiration date of the Offer, including as extended pursuant to this Section 1.1; provided, however, that Acquisition may, at its option, terminate and withdraw the Offer if, after such extensions required to be made under this Section 1.1(b), the Offer has expired in accordance with its terms.
(c) As soon as practicable on the date of commencement of the Offer but after affording the Company Offer, Parent and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, Acquisition shall file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”"Commission")
(i) and cause such documents a Tender Offer Statement on Schedule 14D- 1 with respect to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (which will contain the “Offer Documents”)offer to purchase, and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver form of the conditions set forth in Annex B hereto related letter of transmittal and related summary advertisement and (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant ii) a Rule 13E-3 Transaction Statement with respect to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to other transactions contemplated hereby (the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inSchedule 14D-1, the Schedule 13E-3, the offer to purchase and such other documents, together with any supplements or amendments thereto, the "Offer Documents"). Parent, Merger Sub Acquisition and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it any such information shall have become false or misleading in any material respect. respect and Parent and Merger Sub shall Acquisition each further agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC Commission and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities Lawslaws. The Company Special Committee and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed prior to their filing with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), Commission and shall consult be provided with the Company regarding, any comments (written or oral) that may be received by verbal comments Parent, Merger Sub or Acquisition and their counsel may receive from the SEC Commission or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECof such comments.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Mycogen Corp)
The Offer. (a) Within ten Provided that this Agreement shall not have been terminated in accordance with Section 8.1, as promptly as practicable, but in no event later than the fifth business days (as such term is defined in Rule 14d-1(g)(3) promulgated under day following the Exchange Actpublic announcement of the terms of this Agreement, “Business Days”) after Acquisition shall commence the date hereof, Merger Sub Offer. Acquisition shall, and Parent shall cause Merger Sub Acquisition to, (and subject only to the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock prior satisfaction or waiver of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms conditions of the Offer, the “accept for payment Shares validly tendered as soon as it is legally permitted to do so under applicable law. As promptly as practicable after such acceptance, Acquisition shall, subject to applicable law, pay for such Shares. The Per Share Amount”Amount payable in the Offer shall be paid net to the seller in cash, upon the terms and subject to the conditions of the Offer. Acquisition shall not, without the consent of the Special Committee, accept for payment any Shares tendered pursuant to the Offer unless a number of Shares shall have been validly tendered and not withdrawn prior to the expiration of the Offer such that, upon purchase of such Shares by Acquisition, Acquisition and Parent, collectively, would be the owners of Shares representing at least 81.07% of the Fully Diluted Shares (as defined on Section 9.9) (the "First Minimum Condition"). In addition to the First Minimum Condition, the obligation of Acquisition to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions (i) that a number of Shares shall have been validly tendered and not withdrawn prior to the expiration date of the Offer such that, upon purchase of such Shares by Acquisition, Acquisition and Parent, collectively, would be the owners of Shares representing at least 90% of the Fully Diluted Shares as of the expiration date of the Offer (the "Second Minimum Condition") and (ii) that are set forth in Annex A to this Agreement. It is agreed that the Second Minimum Condition and the other conditions set forth in Annex A are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances unless the failure of any such condition was caused by any breach by Parent or Acquisition of this Agreement. Acquisition expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition (including, without limitation, the Second Minimum Condition, but not including the First Minimum Condition) or to increase the cash price per Share payable in the Offer; PROVIDED that no change may be made that decreases the Per Share Amount payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer or imposes conditions to the Offer in addition to those set forth in Annex A. If requested to do so by Parent or Acquisition, the Company (acting at the direction of the Special Committee) may, in the sole discretion of the Special Committee, waive the First Minimum Condition and Acquisition may thereafter accept for payment any and all Shares validly tendered and not withdrawn prior to the expiration of the Offer whether or not the First Minimum Condition is satisfied.
(b) The initial expiration date of the Offer shall be midnight on the 20th business day following commencement of the Offer. The foregoing notwithstanding, Acquisition may, without the consent of the Company, extend the Offer (i) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (ii) if at any scheduled expiration date any of the conditions to the Offer set forth in paragraphs (a) - (e) of Annex A have not been satisfied or waived, until such time as all of such conditions shall have been satisfied or waived, or (iii) in the event all of the conditions to the Offer shall have been satisfied or waived, other than the Second Minimum Condition, for a period or periods aggregating not more than 40 business days after the later of (A) the initial expiration date of the Offer and (B) the date on which all of the conditions set forth in paragraphs (a) - (e) of Annex A shall have been satisfied or waived. If at any scheduled expiration date of the Offer the Second Minimum Condition shall not have been satisfied, then, at the request of the Company (acting at the direction of the Special Committee, which request shall subsequently be confirmed in writing), Acquisition shall, and Parent shall cause Acquisition to, extend the Offer for a period or periods aggregating not more than 40 business days, subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1. In addition, if at any scheduled expiration date of the Offer, a condition set forth in paragraph (c) or (d) of Annex A hereto shall not have been satisfied but all of the other conditions set forth in paragraphs (a) - (e) of Annex A shall then have been satisfied, then, at the request of the Company (acting at the direction of the Special Committee, which request shall subsequently be confirmed in writing) and so long as the Company is using its reasonable best efforts to cause such conditions to become satisfied, Acquisition shall, and Parent shall cause Acquisition to, extend the Offer for up to an additional 20 business days, subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1. Subject to the right of Acquisition and Parent to terminate this Agreement pursuant to Section 8.1, Acquisition shall not terminate or withdraw the Offer prior to any scheduled expiration date of the Offer, including as extended pursuant to this Section 1.1; PROVIDED, HOWEVER, that Acquisition may, at its option, terminate and withdraw the Offer if, after such extensions required to be made under this Section 1.1(b), the Offer has expired in accordance with its terms.
(c) As soon as practicable on the date of commencement of the Offer but after affording the Company Offer, Parent and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, Acquisition shall file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”"Commission")
(i) and cause such documents a Tender Offer Statement on Schedule 14D-1 with respect to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (which will contain the “Offer Documents”)offer to purchase, and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver form of the conditions set forth in Annex B hereto related letter of transmittal and related summary advertisement and (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant ii) a Rule 13E-3 Transaction Statement with respect to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to other transactions contemplated hereby (the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inSchedule 14D-1, the Schedule 13E-3, the offer to purchase and such other documents, together with any supplements or amendments thereto, the "Offer Documents"). Parent, Merger Sub Acquisition and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it any such information shall have become false or misleading in any material respect. respect and Parent and Merger Sub shall Acquisition each further agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC Commission and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities Lawslaws. The Company Special Committee and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed prior to their filing with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), Commission and shall consult be provided with the Company regarding, any comments (written or oral) that may be received by verbal comments Parent, Merger Sub or Acquisition and their counsel may receive from the SEC Commission or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECof such comments.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within Subject to the conditions of this Agreement, no later than ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after following the date hereofof this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and commence the Company shall cooperate with Merger Sub to) commence (Offer within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares applicable rules and regulations of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “"SEC”) "); provided, however, that the obligation of Sub to, and of Parent to cause such documents Sub to be disseminated to holders of accept for payment, and pay for, any shares of Company Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with Stock tendered pursuant to the Offer (the “Offer Documents”), and shall consummate the Offer, is subject to the terms Minimum Tender Condition and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the other conditions set forth in Annex B hereto I. The initial expiration date of the Offer (the “Tender Offer Conditions”), Parent "Expiration Date") shall cause Merger Sub to, and Merger Sub shall, upon be the expiration 20th business day following the commencement of the Offer, accept for payment, and pay for Offer (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered determined pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held Rule 14d-2 promulgated by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger SEC). Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer; providedOffer and to waive any condition set forth in Annex I, that except that, without the prior written consent of the Company, Merger Sub shall not (i) decrease reduce the Per Share Amount number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) reduce or modify the Minimum Tender Condition, (iv) modify or add to the conditions set forth in Annex I in any manner adverse to the holders of Company Common Stock (other than Parent and its subsidiaries), (v) except as provided in the next sentence, extend the Offer or (vi) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) extend the Offer in increments of not more than ten business days each, if at the scheduled Expiration Date of the Offer any of the conditions to Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived (but in no event, other than by adding considerationthe existence of a Company Takeover Proposal, shall Sub be permitted to extend the Offer beyond the 90th business day after the date of this Agreement (the "Outside Date")), (ii) decrease extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (iii) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC) beyond the Outside Date, if the number of shares of Company Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction that have been validly tendered and not withdrawn represent less than 90% of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of issued and outstanding shares of Company Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit Stock on a fully-diluted basis. Without limiting the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case event that the Minimum Tender Condition is not satisfied at the scheduled Expiration Date of clauses the Offer, at the request of the Company, Sub shall, and Parent shall cause Sub to, extend the Expiration Date of the Offer in increments of not more than five business days each until the earliest to occur of (viw) the satisfaction of the Minimum Tender Condition, (x) the reasonable determination by Parent that the Minimum Tender Condition is not capable of being satisfied on or prior to the Outside Date, (y) the termination of this Agreement in accordance with its terms and (vii)z) the Outside Date. On the terms and upon the prior satisfaction or waiver of the conditions of the Offer set forth in Annex I, (i) Parent shall provide or cause to be provided to Sub, and deposited with the Paying Agent referred to in Section 2.02 on a timely basis, funds necessary to accept for payment, and to pay for, any Shares tendered pursuant to the Offer and (ii) Sub shall, and Parent shall cause Sub to, accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer and in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stockevent not later than three business days after such expiration.
(cb) No agreement or representation hereby is made or As soon as practicable on the date of commencement of the Offer, Sub shall, and Parent shall be made by Parent or Merger cause Sub to, file with the SEC a Tender Offer Statement on Schedule TO with respect to information supplied the Offer, which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and any related documents (such Schedule TO and the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is documents included or incorporated by reference intherein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Company shall cooperate in the preparation of the Offer Documents, and the Company and its counsel will be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC. Each of Parent, Merger Sub and the Company each agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected amended or supplemented, supplemented to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s 's stockholders, in each case as and to the extent required by applicable Federal federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEClaws. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by provide the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The of such comments and shall consult with the Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of responding to any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENcomments.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Imagex Com Inc)
The Offer. (a) Within ten business days (Subject to the terms and conditions set forth in this Agreement, as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) promptly as reasonably practicable after the date hereofof this Agreement, but in no event later than seven (7) Business Days after the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer, within the meaning of the applicable rules and regulations of the SEC, to purchase any and all outstanding Shares at a price equal to the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, purchase, accept for payment, and pay for, Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Annex A (the "Offer Conditions").
(b) The initial expiration date of the Offer shall be the twentieth (20th) Business Day following the commencement of the Offer (determined using Exchange Act Rules 14d-1(g)(3) and 14d-2) (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an "Expiration Date"). Notwithstanding the foregoing, if, on the initial Expiration Date or any subsequent Expiration Date, all of the Offer Conditions have not been satisfied or waived, then Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver rights of the conditions set forth in Annex B hereto parties under Article 8, extend (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to re-extend) the Offer and not validly withdrawn on its Expiration Date beyond the Acceptance initial Expiration Date or such subsequent Expiration Date. The obligation of Merger Sub to accept for payment and to pay for ; provided that any shares of Common Stock validly tendered such extension shall be subject solely to the satisfaction or waiver in increments determined by Merger Sub of the Tender Offer Conditionsnot more than ten (10) Business Days. The Per Share Amount Offer may not be terminated prior to its Expiration Date (as such Expiration Date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Article 8. In no event shall be net Merger Sub extend the Offer beyond the date that is five (5) Business Days prior to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that Walk Away Date without the prior written consent of the CompanyCompany in its sole discretion. Notwithstanding the foregoing, subject to the rights of the parties under Article 8, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in extend the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) and Parent shall not limit the right of Parent and cause Merger Sub to extend the Expiration Date as Offer, for any period required by any rule, regulation, interpretation or permitted position of the SEC or the staff thereof applicable to the Offer or any period required by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common StockLaw.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. Merger Sub shall, and Parent shall cause Merger Sub to, comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the foregoing, Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions shall have been satisfied or waived.
(d) Merger Sub may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act (each a "Subsequent Offering Period") following the Acceptance Time if (i) Merger Sub shall have complied with all of the conditions of Rule 14d-11 under the Exchange Act and (ii) at the commencement of any Subsequent Offering Period (or extension thereof) the number of Shares owned by Parent, Merger Sub and their respective Subsidiaries (including any Shares beneficially owned by any of the foregoing, including all Shares validly tendered and not properly withdrawn at the Acceptance Time) represent less than 90% of the then outstanding number of Shares; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), Merger Sub shall not be permitted to provide for a Subsequent Offering Period. If immediately following the Acceptance Time, Parent, Merger Sub and their respective Subsidiaries own more than 70% but less than 90% of the Shares outstanding at that time (which shall include (i) shares beneficially owned by Parent, Merger Sub and their respective Subsidiaries, which Shares shall be converted into direct ownership at or prior to the expiration of the Offer by Parent, Merger Sub or their respective Subsidiaries, as the case may be, and (ii) shares validly tendered in the Offer and not properly withdrawn at the Acceptance Time), to the extent requested by the Company, Merger Sub shall provide for, and Parent shall cause Merger Sub to provide for, a Subsequent Offering Period of at least ten (10) Business Days; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), the Company shall not have the right to request Merger Sub to provide for a Subsequent Offering Period. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered and not properly withdrawn during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered during any Subsequent Offering Period and in any event in compliance with Rule 14d-11(c) promulgated under the Exchange Act.
(e) Parent and Merger Sub expressly reserve the right to waive any of the Offer Conditions, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the prior written consent of the Company, Parent and Merger Sub shall not do any of the following:
(i) reduce the number of Shares subject to the Offer;
(ii) reduce the Offer Price;
(iii) change or waive the Minimum Tender Condition; provided, however, that Parent and Merger Sub may, at their sole discretion, waive the Minimum Tender Condition to the extent (but only to the extent) that the number of Shares validly tendered (including by guaranteed delivery) and not properly withdrawn, together with any Shares beneficially owned by Parent or any Subsidiary of Parent, equals at least a majority of the shares of Company Common Stock outstanding on a fully diluted basis on the date of purchase (where "on a fully diluted basis" means the sum of (a) the number of shares of Company Common Stock outstanding on the date of purchase, plus (b) the aggregate number of shares of Company Common Stock issuable upon the conversion, exercise or exchange of all securities issued by the Company or other rights issued or granted by the Company (other than the Rights) that, in each case are outstanding on the date of purchase and that, as of the date of purchase, are convertible into or exercisable or exchangeable for shares of Company Common Stock, excluding in each case any shares of Company Common Stock that are issuable upon the conversion, exercise or exchange of (x) any Convertible Note, (y) any Option that has an exercise price in excess of the Offer Price, or (z) any Option, Restricted Stock Unit or share of Restricted Stock that is not vested as of the date of purchase and would not be vested immediately after and giving effect to the consummation of the Offer);
(iv) except as provided in Section 1.1(b), extend or otherwise change the Expiration Date, except (A) as required by applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof) or (B) in connection with an increase of the Offer Price;
(v) change the form of consideration payable in the Offer;
(vi) impose any condition to the Offer other than the Offer Conditions; or
(vii) otherwise amend, modify or supplement any of the Offer Conditions or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of the Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions.
(f) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall (i) contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, being referred to as the "Offer Documents") and (ii) be in form reasonably satisfactory to the Company. The Company shall as promptly as practicable upon request of Parent, provide Parent and Merger Sub with all information concerning the Company and the Company Subsidiaries and Company stockholders that is required to be included in the Offer Documents. Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the requirements of applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the holders of Shares, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent necessary such that the Offer Documents do not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by applicable U.S. federal securities Laws. The Company and its counsel shall be afforded a reasonable opportunity to review and comment upon the Offer Documents each time before they are filed with the SEC and/or disseminated to holders of Shares (and the Company and its counsel shall provide any comments thereon as soon as reasonably practicable, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel). Parent and Merger Sub shall provide to the Company and its counsel copies of any written comments or telephonic notification of any oral comments or other communications Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments or other communications, shall consult with the Company and its counsel prior to responding to any such comments or other communications and shall provide the Company with copies of all written responses and telephonic notification of any oral responses thereto of Parent or Merger Sub or their counsel, provided that Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to participate in the response of Parent and Merger Sub to any such comments or other communications and to provide comments on that response (to which reasonable and good faith consideration shall be given by Parent and Merger Sub).
(g) Promptly Unless this Agreement is terminated pursuant to Section 8.1, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Date without the prior written consent of the Company in its sole discretion, except that in the event this Agreement is terminated pursuant to Section 8.1, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the tendering stockholders.
(h) The Offer Price shall be adjusted to reflect fully the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock effected by the Company in accordance with the terms and conditions of this Agreement and occurring (or for which a record date is established) after the Acceptance Date, date of this Agreement and prior to the Company shall take all action requested payment by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of Merger Sub for the NYSE AMEX Company Guide Shares validly tendered and make any necessary filings and disclosures associated not properly withdrawn in connection with such statusthe Offer.
Appears in 1 contract
Sources: Merger Agreement (Sepracor Inc /De/)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and the Company shall have furnished to Parent and Merger Sub the information required to be furnished by it pursuant to Section 1.1(c), as promptly as practicable following the execution of this Agreement, but in any event within fifteen (as such term is defined in Rule 14d-1(g)(315) promulgated under the Exchange Act, “Business Days”) after Days following the date hereof, of this Agreement (or such other later date as the parties may mutually agree in writing) Merger Sub shall, shall (and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) an offer the Offer to purchase all outstanding shares of Common Stock Shares for consideration per share consisting of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date . The Per Share Amount shall be net to each seller of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, Shares in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offercash, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all reduction only for any applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant taxes attributable to the Offer and not validly withdrawn on the Acceptance Datesuch seller. The obligation obligations of Merger Sub to accept for payment and to pay for any shares Shares tendered and not withdrawn prior to the expiration of Common Stock validly tendered the Offer (as it may be extended in accordance with the requirements of this Agreement) shall be subject solely to the satisfaction or waiver by Merger Sub of those conditions set forth in Annex I (the “Tender Offer Conditions”). The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock Company agrees that no Shares held by the Company or any of its Subsidiaries shall will be tendered pursuant to the Offer. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section Sections 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount and to modify or to make amend any other changes in the terms and conditions term of the Offer; provided, provided that without the prior written consent of the Company, Merger Sub shall not and Parent shall cause Merger Sub not to (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Common Stock Shares sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B)Condition, (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common StockOffer, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for Conditions (other than the Minimum Condition) or increase the Per Share Amount) or (viiv) modify or amend any other term of the Offer, Offer in the case of clauses this clause (viv) and (vii), in any manner adverse to the holders of shares Shares or which would reasonably be expected to, individually or in the aggregate, prevent or materially delay the consummation of Common Stock the Offer by Parent or Merger Sub; provided that Merger Sub may, at its option and in their capacities as holders its sole discretion and without the prior written consent of shares the Company, reduce the Minimum Condition to no less than a majority of Common Stockthe number of Shares outstanding at the time of such waiver (calculated on a fully-diluted basis).
(c) No agreement or representation hereby is made or shall be made by Parent or On the Offer Commencement Date, Merger Sub shall, and Parent shall cause Merger Sub to, file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to information supplied by the Company expressly for inclusion in, Offer which shall contain or with respect to Company information derived from the Company SEC Filings that is included or incorporated incorporate by reference inthe offer to purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and other ancillary Offer documents (collectively, together with any supplements or amendments thereto, the “Offer Documents”) which shall comply in all material respects with the provisions of all applicable Federal securities Laws. ParentParent and Merger Sub, Merger Sub on the one hand, and the Company each agrees Company, on the other hand, agree to promptly to correct any information respectively provided by it them for use in the Offer Documents if and to the extent that it shall have become false contain any untrue statement of a material fact or misleading in omit to state any material respect. Parent fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, and Merger Sub shall will cause the Schedule TOOffer Documents, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated made available to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities Laws. The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable securities Laws or reasonably requested by Parent or Merger Sub for inclusion in the Schedule TO or the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Schedule TO and the Offer Documents to Purchase (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additionsIn addition, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with and its counsel (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Parent or Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents as promptly as practicable after receipt thereofof such comments. The Company and its counsel shall be given a reasonable opportunity to review any such written and comment upon any oral comments and proposed responses before they are filed and participate in any related oral conference held with the staff of the SEC.
(d) The initial Offer to Purchase shall provide for an expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day (as defined in Rule 14d-1 under the Exchange Act, “Business Day”) following (and including the day of) the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreementagreement, the “Expiration Date”). Merger Sub shall not and Parent agrees that it shall cause Merger Sub to not terminate or withdraw the Offer prior to the earlier of (i) the Acceptance Time and (ii) the sixtieth (60th) Business Day following the commencement of the Offer, other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding 8.1.
(e) So long as the foregoing, unless Offer and this Agreement is have not been terminated in accordance with ARTICLE SEVENpursuant to Section 8.1, if at any scheduled Expiration Date, the Tender Offer Conditions shall not have been satisfied or earlier waived, Merger SubSub shall be entitled, in its sole discretion, to extend the Offer and the Expiration Date to a date that is not more than ten (10) Business Days after the previously scheduled Expiration Date (as so extended from time to time); provided that Merger Sub shall not be entitled to extend the Offer or the Expiration Date beyond the sixtieth (60th) Business Day following the commencement of the Offer. In addition, Merger Sub may, without Parent or Merger Sub obtaining receiving the consent of the Company, (i) shall extend the Expiration Date for any additional period required by the applicable rules and regulations of the SEC SEC, the NASDAQ or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied other stock exchange or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX automated quotation system applicable to the Offer (including in connection with an increase in but, for the Per Share Amount)avoidance of doubt, in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date not beyond the Outside Date for up to a period not to exceed End Date). Notwithstanding the 13th foregoing, if at the end of the twentieth (20th) Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation following commencement of the Offer following or at the public announcement of the receipt end of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside subsequent scheduled Expiration Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are have been satisfied and/or waived other than the Minimum Condition, Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, extend one or waived more times the expiration of the Offer and it the Expiration Date to a date that is permitted under applicable Law not more than ten (10) Business Days after the previously scheduled Expiration Date (as so extended from time to accept for payment and pay for validly tendered shares time); provided, that Merger Sub shall not be obligated to extend the Offer or the Expiration Date beyond the sixtieth (60th) Business Day following commencement of Common Stock that are not validly withdrawnthe Offer. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does has not acquire a sufficient number acquired at least 90% of shares the Shares then outstanding (assuming exercise of Common Stock to enable a Shortthe Top-Form Merger to occur pursuant to Section 2.7 hereofUp Option in full), Merger Sub may (shall be entitled, in its sole discretion), until the Outside Date, to provide a one or more “subsequent offering periodperiods” to the Offer in accordance with Rule 14d-11 under the Exchange Act for a number of days to be determined by Parent but Merger Sub in its sole discretion which shall be not less than three (3) nor more than 20 twenty (20) Business Days in the aggregate. In accordance with Rule 14d-11 promulgated under the Exchange Act, Merger Sub shall, and Parent shall cause Merger Sub to, immediately accept and promptly pay for all Shares tendered during any such subsequent offering period.
(f) Promptly upon Subject solely to the satisfaction or waiver (to the extent permitted by this Agreement) by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b)Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable possible after the Expiration Datescheduled expiration of the Offer (as it may be extended in accordance with Section 1.1(d)), immediately accept for payment and promptly pay for all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which ,” and the time of acceptance may be by oral notice to the Paying Agent, (ii) for payment on the Acceptance Date, the “Acceptance Time”). Parent shall deposit (or shall cause to be deposited deposited) with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Shares accepted by Merger Sub becomes obligated to purchase pursuant to in the Offer.
(g) Promptly after In the Acceptance Dateevent that the Company changes the number of Shares or securities convertible or exchangeable into or exercisable for Shares issued and outstanding following the date of this Agreement and prior to the payment by Merger Sub or its affiliate for such Shares, as a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, merger or other similar extraordinary transaction, the Company Offer Price shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such statusequitably adjusted.
Appears in 1 contract
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof and so long as none of the events set forth on ANNEX A hereto (the "TENDER OFFER CONDITIONS") shall have occurred and are continuing, as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) promptly as practicable after the date hereofof this Agreement, Merger Sub shall, shall and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares the Offer as promptly as reasonably practicable (but in no event later than five (5) Business Days after the first public announcement of Common Stock of this Agreement by the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the Company). The initial expiration date of commencement of the Offer but shall be the twentieth Business Day from and after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender date the Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission is commenced (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”"Initial Expiration Date"), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly Shares tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions, any of which may be waived by Parent or Sub in whole or in part in their sole discretion; PROVIDED, HOWEVER, that Sub shall not waive the Minimum Condition without the prior consent of the Company. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger and Sub expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer, including, without limitation, to extend the Offer beyond any scheduled expiration date; providedPROVIDED, HOWEVER, that neither Parent nor Sub shall, without the prior written consent of the Company, Merger Sub shall not (i) decrease reduce the Per Share Amount number of Shares subject to the Offer or waive the Minimum Condition, (ii) reduce the Offer Price, (iii) impose any additional conditions to the Offer, (iv) change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in to the terms of the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend including the Tender Offer Conditions (other than Conditions) which is materially adverse in any manner to waive such the holders of the Shares. Subject to the prior satisfaction or waiver of the Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the OfferSub shall, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TOSub to, as so corrected or supplementedaccept for payment and pay for, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) Shares which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock been validly tendered and not properly withdrawn pursuant at or prior to the expiration of the Offer promptly after the expiration of the Offer and in any event no later than three (3) Business Days following the date expiration of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for paymentOffer. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary sufficient to purchase accept for payment and pay for any shares of Common Stock and all Shares that Merger Sub becomes obligated to purchase accept for payment and pay for pursuant to the Offer.
. Parent and Sub shall have the right, in their sole discretion, to extend the expiration date of the Offer, from time to time, for successive periods of up to twenty (g20) Promptly after Business Days each, but in no event, later than the Acceptance Termination Date, if the Tender Offer Conditions have not been met. If on any scheduled expiration date of the Offer, the Offer would have expired without any Shares being purchased because the Tender Offer Conditions have not been met, Parent and Sub shall, at the request of the Company shall take all action requested by Parent necessary (subject always to elect to be treated as a “controlled company” as defined by Section 801(a) the terms and conditions of this Agreement), extend the expiration date of the NYSE AMEX Company Guide Offer, from time to time, for successive periods of up to twenty (20) Business Days each (but in no event later than the Termination Date) unless such conditions are not capable of being satisfied prior to the Termination Date. In addition, notwithstanding anything in this Section 2.1(a) to the contrary, if not already disclosed in the Offer to Purchase, Parent and make any necessary filings Sub may amend the Schedule TO to permit the announcement of a subsequent offering period (as such term is defined in Rule 14d-1 promulgated under the Exchange Act (the "SUBSEQUENT OFFER PERIOD")) to the Offer, and disclosures associated with such statusSub may include a Subsequent Offer Period to the Offer for up to a maximum of twenty (20) Business Days.
Appears in 1 contract
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement shall not have been terminated in Rule 14d-1(g)(3) promulgated under accordance with Article VIII and none of the Exchange Actevents or conditions set forth in Annex A shall have occurred and be existing, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub toSubcorp to commence, (and the Company Subcorp shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the ”Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price”)), or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offeras promptly as reasonably practicable, the “Per Share Amount”) and shallbut in no event later than five business days, on after the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits theretothis Agreement, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, Subcorp to accept for payment, and pay Subcorp shall accept for (after giving effect to any required withholding or stock transfer Tax)payment, all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the initial Expiration Date at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment all additional shares of Company Common Stock validly tendered during any subsequent offering period as provided in Section 1.1(c). Subcorp shall not accept for payment any shares of Company Common Stock tendered pursuant to the Offer unless there shall have been validly tendered and not validly withdrawn on prior to the Acceptance Date. The obligation Expiration Date such number of Merger Sub to accept for payment and to pay for any shares of Company Common Stock validly tendered shall be subject solely to that satisfy the satisfaction or waiver by Merger Sub of the Tender Offer ConditionsMinimum Condition. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub Subcorp expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or and to make waive any other changes in the terms and conditions condition of the Offer; provided, that without except the Minimum Condition. Without the prior written consent of the Company, Merger Sub Subcorp shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse addition to those set forth in Annex A, change or waive the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer ConditionsMinimum Condition or, except for the Minimum Conditionas provided in Section 1.1(c) or (vii) modify d), extend the expiration of the Offer beyond the initial Expiration Date, or amend any other term of the Offer, Offer in the case of clauses (vi) and (vii), in any a manner materially adverse to the Company Shareholders. The Per Share Amount shall be paid less any required withholding of Taxes, upon the terms and subject to satisfaction or waiver of the conditions of the Offer set forth in Annex A. The Company agrees that no shares of Company Common Stock held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) Subcorp shall file with the Securities and Exchange Commission (the “Commission”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date the Offer is commenced, which shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the “Offer Documents”) and use its reasonable best efforts to cause the Offer Documents to be disseminated to the Company Shareholders in accordance in all material respects with the applicable requirements of the United States federal securities laws. Parent and Subcorp will use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of the United States federal securities laws. The information provided and to be provided by the Company, Parent and Subcorp for use in the Offer Documents shall not, on the date filed with the Commission and on the date first published or sent or given to holders of shares of Company Common Stock (the “Company Shareholders”), as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in their capacities as holders order to make the statements therein, in light of shares of Common Stock.
(c) No agreement or the circumstances under which they were made, not misleading, except that no representation hereby is made or shall be made by Parent or Merger Sub Subcorp with respect to the information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, in the Offer Documents. ParentThe Company, Merger Sub Parent and the Company Subcorp each agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. , and Parent and Merger Sub shall further agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC Commission and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and Company Shareholders to the extent required by applicable Federal United States federal securities Lawslaws. The Company shall promptly furnish to Parent or Subcorp all information concerning the Company that is required or reasonably requested by Parent or Subcorp in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are filed prior to the filing thereof with the SECCommission or dissemination to the Company Shareholders. In addition, Parent and Merger Sub Subcorp shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by provide the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writingcomments, if written), and shall consult with the Company regarding, any comments (whether written or oral) , that may be received by Parent, Merger Sub Parent or Subcorp or their counsel may receive from time to time from the Commission or the staff of the Commission (the “SEC or its staff Staff”) with respect to the Offer Documents promptly within a reasonable time after receipt thereof. The of such comments, consult with the Company and its counsel shall be given a reasonable opportunity prior to review responding to such comments and comment upon any proposed provide the Company with copies of all written responses before they are filed with and advise the SECCompany as to the substance of all oral responses.
(dc) The initial expiration date Subject to the provisions of Article VIII and the terms and conditions thereof, the Offer shall be at remain open until midnight, New York City time, on the 20th Business Day following date that is 20 business days after the commencement date the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such dateas so extended, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the also an “Expiration Date”). Merger Sub shall not terminate or withdraw Subcorp may, without the consent of the Company, (A) if at the time of the then scheduled Expiration Date any of the conditions of the Offer are not satisfied or waived, extend the Offer for such period as Subcorp determines; provided that such extension shall be in increments of not more than five business days if all of the conditions set forth on Annex A other than the Minimum Condition have been satisfied or waived at such Expiration Date, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Commission or the SEC Staff applicable to the Offer and (C) if at the then scheduled Expiration Date all of the conditions set forth on Annex A have been satisfied or waived, extend the Offer for one subsequent offering period (as provided in connection with Rule 14d-11 under the effective Exchange Act) for three to 20 business days after Subcorp’s acceptance for payment of the Company Common Stock then tendered and not withdrawn pursuant to the Offer in order to acquire at least 90% of the outstanding Company Common Stock.
(d) The Company may cause the extension of the Expiration Date in accordance with, and subject to the terms of, this Section 1.1(d).
(i) In the event that the Minimum Condition has not been satisfied or waived at the then scheduled Expiration Date, at the written request of the Company, Subcorp shall, and Parent shall cause Subcorp to, extend the Expiration Date in such increments as Subcorp may reasonably determine until the earliest to occur of (A) the satisfaction or waiver of such condition, (B) Parent’s reasonable determination, after May 1, 2005, that such condition to the Offer is not capable of being satisfied on or prior to the Outside Date, (C) the termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding its terms or (D) the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining Outside Date; provided that the consent Company shall not be entitled to any extension of the Company, (i) shall extend the Expiration Date for contemplated by this Section 1.1(d)(i) if (x) any period required by the rules and regulations of the SEC obligations of the Principal Shareholders under the Support Agreement have been breached by one or more of the NYSE AMEX (“NYSE AMEX”) applicable to the OfferPrincipal Shareholders beneficially owning, including in connection with an increase individually or in the Per Share Amountaggregate, more than 3% of the Fully Diluted Shares or (y) York has breached any of his obligations under the York Support Agreement or M▇▇▇▇▇ has breached any of his obligations under the M▇▇▇▇▇ Support Agreement.
(ii) In the event that any applicable waiting period under the HSR Act shall extend not have expired or been terminated at the Expiration Date if, on any then scheduled Expiration Date, any at the written request of the Tender Offer Conditions is not satisfied or waived by ParentCompany, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside DateSubcorp shall, and (iii) may Parent shall cause Subcorp to, extend the Expiration Date beyond in such increments as Subcorp may reasonably determine until the Outside Date for up to a period not to exceed the 13th Business Day after the last earliest to occur of any date on which (wA) the Company shall have publicly announced expiration or termination of such waiting period, (B) the receipt termination of an Acquisition Proposal this Agreement in the event such announcement is made less than ten Business Days prior to accordance with its terms or (C) the Outside Date, .
(xiii) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in In the event that a failure to satisfy the condition in paragraph (d) of Annex A shall exist and the cure period described therein shall not have expired at the then scheduled Expiration Date, at the written request of the Company, Subcorp shall, and Parent shall cause Subcorp to, extend the Expiration Date in such reaffirmation increments as Subcorp may reasonably determine until the earliest to occur of (A) the cure of such failure, (B) the expiration of such cure period, (C) the termination of this Agreement in accordance with its terms or announcement is made less than ten Business Days prior to (D) the Outside Date.
(iv) In the event that a notice contemplated by Section 6.3(c) is delivered to Parent within three business days of the initial Expiration Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent then Subcorp shall not extend the Offer if all for a period of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENno less than three business days.
(e) In Subject to the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the prior satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b)conditions to the Offer, Subcorp shall, and Parent shall cause Merger Sub Subcorp to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment payment, and pay for for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (promptly, but in no event more than three business days, following the date of acceptance for payment, the “Acceptance Expiration Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Amx Corp /Tx/)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Article VIII, as promptly as practicable, and in any event within 10 Business Days, after the date hereof, Merger Sub shall (as such term is defined in and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d-1(g)(3) promulgated 14d-2 under the Exchange Act, the Offer to purchase for cash all issued outstanding shares of Company Common Stock at the Offer Price. The consummation of the Offer, and the obligation of Merger Sub to accept for payment and pay for shares of Company Common Stock tendered pursuant to the Offer shall be subject solely to: (i) there being validly tendered in the Offer (in the aggregate) and not properly withdrawn prior to the Expiration Date that number of shares of Company Common Stock which, together with the number of shares of Company Common Stock (if any) then owned of record by Parent or any of its wholly-owned direct or indirect Subsidiaries, including Merger Sub, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including Merger Sub, otherwise has, directly or indirectly, voting power, represents at least a majority of the shares of Company Common Stock then outstanding (determined on a Fully Diluted Basis) (the “Business DaysMinimum Condition”); and (ii) after the date hereofsatisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex A (such conditions and requirements, together with the Minimum Condition, the “Offer Conditions”). The Offer Conditions are for the sole benefit of Merger Sub and may be asserted by Merger Sub regardless of the circumstances giving rise to such condition or may be waived by Merger Sub, in its sole discretion, in whole or in part at any time and from time to time, subject to this Section 1.1. For purposes of clarity, Merger Sub may not waive the Minimum Condition.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Merger Sub, of the other Offer Conditions as of the Expiration Date, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, payment and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and not validly withdrawn on promptly after the Acceptance Expiration Date. The obligation of Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for any and all shares of Company Common Stock that Merger Sub becomes obligated to accept for payment and purchase pursuant to pay for any shares the Offer. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net paid to the seller in cash, without interest, subject to reduction for any withholding of Taxes required by applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by Law, on the Company or its Subsidiaries shall be tendered pursuant terms and subject to the Offerconditions set forth in this Agreement.
(bc) Parent on behalf The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other Offer Conditions. To the extent permitted by applicable Law, Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), (in its sole discretion, to waive any Tender Offer Condition, ) to increase the Per Share Amount Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that without except with the prior written consent approval of the Company, Merger Sub shall not (i) decrease the Per Share Amount or Offer Price, (ii) change the form of consideration payable in the Offer (other than by adding consideration)Offer, (iiiii) decrease reduce the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (iiiiv) amend, modify or waive the Minimum Condition, (v) amend or waive satisfaction any of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the other Offer or modify any conditions to the Offer Conditions in a manner adverse to the holders of shares of Company Common Stock, (vvi) make any change in impose conditions to the Offer that would require an extension or delay of are in addition to the then current Expiration Date; providedOffer Conditions, however, that this clause (vvii) shall not limit the right of Parent and Merger Sub to extend the Expiration Date except as required or permitted by provided in Section 1.1(d1.1(e), (vi) terminate, accelerate, extend or otherwise modify or amend the Tender Expiration Date, or (viii) otherwise modify or amend any of the other terms of the Offer Conditions in a manner adverse in any material respect to the holders of shares of Company Common Stock. For the avoidance of doubt, in no event shall any waiver by Parent or Merger Sub of any condition to the Offer (other than to waive such Tender Offer Conditions, except for the Minimum Condition) in accordance with the terms of this Agreement be deemed to be a modification or (vii) modify or amend any other term amendment of the Offer, in the case of clauses (vi) and (vii), in any manner Offer that is adverse to the holders of shares of Common Stock in their capacities as holders of shares of Company Common Stock.
(cd) No agreement or representation hereby is made or shall be made by Parent or Merger Sub Unless extended in accordance with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inSection 1.1(e), the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents expire at 12:00 midnight (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on ) at the 20th end of the day that is 20 Business Day Days following the commencement of the Offer (determined using Rules Rule 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such datedate and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with Section 1.1(e), the date and time to which the Offer has been so extended (the Initial Expiration Date, or such subsequent later date and time to which the expiration of the Offer is Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, .
(ie) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on If at any then scheduled Expiration Date, any of the Tender Offer Conditions is (including the Minimum Condition) have not satisfied been satisfied, or waived (to the extent permitted by Parentthe terms of this Agreement and applicable Law) by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for such successive periods of up to ten 20 Business Days at a time (or such other period as shall be approved by each, the Company) which length of each such period of time as to be determined by Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that Merger Sub shall not be required to extend, and shall not extend without the consent of the Company, the Offer beyond the End Date if any condition to the Offer has not been satisfied at or prior to the End Date. In addition, notwithstanding anything to the contrary in the prior sentence, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) If necessary to obtain sufficient shares of Company Common Stock to reach the Short Form Threshold (assuming full exercise of the Top-Up Option), until the Outside Date, Merger Sub shall provide for a “subsequent offering period” for a number (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act of days to be determined by Parent but not less than three nor or more than 20 Business Days each (for this purpose calculated in accordance with Rule 14d-11 14d-1(g)(3) promulgated under the Exchange Act.
(f) Promptly upon ). Subject to the satisfaction or waiver by terms and conditions of this Agreement and the Offer, Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), shall (and Parent shall cause Merger Sub to) immediately accept for payment, and Merger Sub shallpay for, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Company Common Stock that are validly tendered and not properly withdrawn pursuant to the Offer (during each such “subsequent offering period.” Without limiting the date generality of acceptance for paymentthe foregoing, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase during such “subsequent offering period.” The Offer Documents will provide for a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f) and Rule 14d-11 under the Exchange Act.
(g) Subject to Section 1.1(i), Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement has been terminated in accordance with Article VIII. If this Agreement is terminated in accordance with Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within one Business Day of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the purchase of shares of Company Common Stock in the Offer, including pursuant to Section 1.1(i), Merger Sub shall (and Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof and Merger Sub shall not (and Parent shall cause Merger Sub not to) accept any shares of Company Common Stock pursuant to the Offer.
(gh) Promptly As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments, supplements and exhibits thereto, the “Offer Documents”). Merger Sub may, but shall not be required to, provide guaranteed delivery procedures for the tender of shares of Company Common Stock in the Offer; provided, however, if Merger Sub provides guaranteed delivery procedures, for purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub shall include for purposes of its determination thereof shares of Company Common Stock tendered in the Offer pursuant to guaranteed delivery procedures if and only if shares of Company Common Stock have been delivered pursuant to such guarantees as of the Expiration Date. Parent and Merger Sub agree to cause the Offer Documents to be disseminated to holders of shares of Company Common Stock, as and to the extent required by Law, including the Exchange Act. Parent and Merger Sub shall cause the Schedule TO and the Offer Documents to comply as to form in all material respects with the requirements of applicable Law. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly notify the other Party and correct any information provided by it for use in the Offer Documents, if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law, and Merger Sub agrees to cause the Offer Documents, as so corrected, to be filed with the SEC and disseminated to holders of shares of Company Common Stock, in each case, as and to the extent required by Law, including the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and Merger Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Sub shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent and Merger Sub or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such responses and Parent and Merger Sub shall give due consideration to the Acceptance reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(i) If at any then-scheduled Expiration Date that is subsequent to the Initial Expiration Date and not more than 10 Business Days prior to the then scheduled date of the Company Stockholders Meeting, (i) any Offer Condition shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived and (ii) three Business Days have elapsed since the Proxy Statement Clearance Date, then Merger Sub may irrevocably and unconditionally terminate the Offer. If the Offer is terminated pursuant to this Section 1.1(i), the Company shall proceed with and take all action requested by Parent actions necessary to elect to be treated as a “controlled company” as defined by Section 801(a) hold the Company Stockholders Meeting in accordance with the terms of this Agreement. The termination of the NYSE AMEX Offer pursuant to this Section 1.1(i) is referred to in this Agreement as the “Offer Termination”. Notwithstanding anything to the contrary in this Section 1.1(i), if this Agreement is terminated pursuant to Article VIII, then Merger Sub shall promptly (and, in any event, within two Business Days of such termination), irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Guide Common Stock pursuant to the Offer. If the Offer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, including this Section 1.1(i), or this Agreement is terminated in accordance with Article VIII, Merger Sub shall promptly return, and make shall cause any necessary filings depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof to the extent required by the terms of the Offer. The Parties hereto acknowledge and disclosures associated agree that the Offer Termination shall not give rise to a right of termination of this Agreement unless to the extent expressly provided for in Article VIII and that, absent such termination of this Agreement, the obligations of the Parties other than those related to the Offer shall continue to remain in effect, including those obligations with such statusrespect to the Merger.
Appears in 1 contract
Sources: Merger Agreement (Insite Vision Inc)
The Offer. (a) Within ten business days (as such term is defined Provided that none of the events set forth in Rule 14d-1(g)(3) promulgated under the Exchange ActAnnex A hereto shall have occurred and be continuing, “Business Days”) after the date hereof, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the Offer as promptly as reasonably practicable after the date hereof (but in no event later than ten (10) business days after the date of this Agreement). The obligation of Purchaser to accept for payment Securities tendered pursuant to the Offer shall be subject only to (i) the condition (the "Minimum Condition") that there shall have been validly tendered and not withdrawn prior to the expiration of the Offer at least the number of shares of Company Common Stock, shares of Company Series A Preferred Stock and Warrants (determined as if shares of Company Series A Preferred Stock and Warrants have been converted into or exercised for shares of Company Common Stock) that, when added to Securities already owned by Parent, Purchaser and their subsidiaries, shall cooperate with Merger Sub to) commence (within constitute two-thirds of the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all then outstanding shares of Company Common Stock of the Company at the purchase price of $16.00 per share of Common Stock on a Fully Diluted Basis and (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”ii) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of each of the other conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance DateA hereto. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub Purchaser expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Conditionsuch condition, to increase the Per Share Amount or Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made which decreases the Per Share Amount or which reduces the maximum number of Securities to be purchased in the Offer or which modifies in any manner adverse to the holders of Securities or adds conditions to the Offer in addition to those set forth in Annex A hereto and that Purchaser shall not, without the prior written consent of the Company, Merger Sub shall not waive or change the Minimum Condition, change the scheduled expiration date of the Offer (iexcept as provided in the next sentence) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration)Offer. Notwithstanding the foregoing, (ii) decrease Purchaser may, without the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction consent of the Minimum Condition Company: (as defined in Annex B), (ivi) impose additional conditions to the Offer or modify any conditions to extend the Offer in a manner adverse to increments of no more than five (5) business days each beyond the holders of shares of Common Stockscheduled expiration date, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) which shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall initially be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day 20 business days following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under Offer, if, at the Exchange Act) (such date, or such subsequent date to which the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept Securities for payment shall not be satisfied or waived, provided that the Purchaser may not extend the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, clause (i) shall for more than 10 business days in total if all of the conditions set forth in Annex A hereto other than the Financing Condition have been satisfied or waived, (ii) extend the Expiration Date Offer for any period required by the rules and regulations of the SEC any rule, regulation or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.interpretation of
Appears in 1 contract
Sources: Merger Agreement (Mohawk Corp)
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement shall not have been terminated in Rule 14d-1(g)(3) promulgated under accordance with Article 7 and none of the Exchange Actevents or conditions set forth in Annex A shall have occurred and be existing, “Business Days”) after the date hereofby January 5, Merger Sub shall2001, and Parent shall cause Merger Sub toAcquisition to commence, (and the Company Acquisition shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer the Offer; and Parent and Acquisition shall use all reasonable efforts to purchase all outstanding shares of Common Stock of consummate the Company at the purchase price of $16.00 per share of Common Stock (such priceOffer. Parent shall cause Acquisition to accept for payment, or any higher price per share of Common Stock paid by Merger Sub and Acquisition shall accept for payment, Shares and Preferred Shares which have been validly tendered and not withdrawn pursuant to the terms Offer at the earliest time following expiration of the initial offering period in the Offer at which all conditions to the Offer shall have been satisfied or waived by Acquisition, and thereafter shall accept for payment additional Shares and/or Preferred Shares validly tendered during any subsequent offering period. The obligation of Acquisition to accept for payment, and pay for Shares and/or Preferred Shares tendered pursuant to the Offer shall be subject only to the condition that the sum of the number of Shares validly tendered plus the number of Preferred Shares validly tendered shall be at least 25,562,006 shares (the "Minimum Condition") and the other conditions set forth in Annex A hereto. Acquisition expressly reserves the right to increase the price per Share or price per Preferred Share payable in the Offer and to waive any condition of the Offer, except the “Minimum Condition. Without the prior written consent of the Company, Acquisition shall not decrease the Per Share Amount”) and shallAmount or the Per Preferred Share Amount or change the form of consideration payable in the Offer, on decrease the date number of commencement Shares or Preferred Shares sought to be purchased in the Offer, impose additional conditions to the Offer, amend any other term of the Offer but after affording in any manner adverse to the holders of Shares or Preferred Shares, reduce the time period during which the Offer shall remain open or waive the Minimum Condition. The Per Share Amount and the Per Preferred Share Amount shall be paid net to the seller in cash, less any required withholding of taxes, upon the terms and subject to such conditions of the Offer. The Company agrees that no Shares or Preferred Shares held by the Company and or any of its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made therebysubsidiaries will be tendered in the Offer.
(b) As soon as practicable after the date hereof, Acquisition shall file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “"SEC”") and cause such documents a Tender Offer Statement on Schedule TO with respect to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject which shall include an offer to purchase and form of transmittal letter (together with any supplements or amendments thereto, collectively the terms and conditions hereof and thereof"Offer Documents"). The Offer Documents will comply in all material respects with the provisions of all applicable Federal federal securities Lawslaws. Subject to the terms and conditions of this Agreement The information provided and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver provided by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable Parent and Acquisition for use in the Offer (other than by adding consideration)Documents shall not, (ii) decrease on the number date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of shares of Common Stock a material fact or omit to state any material fact required to be purchased stated therein or necessary in order to make the Offerstatements therein, (iii) amend or waive satisfaction in light of the Minimum Condition (as defined in Annex B)circumstances under which they were made, (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documentsmisleading. Parent, Merger Sub Acquisition and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent respect and Merger Sub shall Acquisition further agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Shares and Preferred Shares, in each case as and to the extent required by applicable Federal federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEClaws.
(dc) The initial expiration date of Subject to the terms and conditions thereof, the Offer shall be remain open until at least midnight, New York City time, on the 20th Business Day following date that is twenty (20) business days after the commencement date the Offer is commenced (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an "Expiration Date"); provided, however, that without the consent of the Company Board, Acquisition may: (determined using Rules 14d-1(g)(3i) and 14d-2 promulgated from time to time extend the Offer (each such individual extension not to exceed five (5) business days after the previously scheduled Expiration Date), if at the scheduled Expiration Date any of the conditions of the Offer shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or (iii) extend the Offer for a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) of up to twenty (such date, 20) business days in order to acquire over ninety percent (90%) of the outstanding Shares or such subsequent date Preferred Shares. Parent agrees to cause Acquisition to extend the Offer from time to time in accordance with this Section 1.1(c) for the shortest time periods which the expiration it reasonably believes are necessary until consummation of the Offer is extended pursuant to and in accordance with if the terms conditions of this Agreement, the “Expiration Date”). Merger Sub Offer shall not terminate have been satisfied or withdraw the Offer other than in connection with the effective termination of waived so long as this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is shall not have been terminated in accordance with ARTICLE SEVEN, Merger Sub, without Article 7 hereof. Parent or Merger Sub obtaining and Acquisition shall comply with the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for obligations respecting prompt payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated announcement under the Exchange Act.
(f) Promptly upon , and, without limiting the satisfaction or waiver by Merger Sub generality of the Tender Offer Conditions in accordance with Section 1.1(b)foregoing, Acquisition shall, and Parent shall cause Merger Sub Acquisition to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment payment, and pay for for, all shares of Common Stock Shares and Preferred Shares validly tendered and not properly withdrawn pursuant to the Offer (promptly following the date acceptance of acceptance such Shares and Preferred Shares for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase payment pursuant to the OfferOffer and this Agreement.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Northrop Grumman Corp)
The Offer. (a) Within ten Subject to the conditions of this Agreement, as promptly as practicable, but in no event later than five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereofof the execution and delivery of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and commence the Company shall cooperate with Merger Sub to) commence (Offer within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act) an offer "). The obligation of Merger Sub to, and of Parent to purchase all outstanding cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (any of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid which may be waived by Merger Sub pursuant in --------- its sole discretion, provided that, without the consent of the Company, Merger Sub may not waive the Minimum Tender Condition (as defined in Exhibit A)) and to --------- the other conditions in this Agreement. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer. Merger Sub expressly reserves the right to modify the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cashexcept that, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not not, except as provided in the next sentence: (i) decrease reduce the Per Share Amount number of shares of Company Common Stock subject to the Offer; (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer; (iii) modify or add to the conditions set forth in Exhibit A in any manner materially adverse to the holders of Company Common --------- Stock; (iv) extend the Offer; (v) change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend ; or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or otherwise amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company (w) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock set forth herein or in their capacities Exhibit A are not satisfied, until such time as holders such conditions are satisfied or waived; (x) extend the Offer for a period of not more than 15 business days beyond the initial expiration date of the Offer, if on the date of such extension less than 90% of the outstanding shares of Company Common Stock.
Stock have been validly tendered and not properly withdrawn pursuant to the Offer; (cy) No agreement extend the Offer for any period required by applicable law, including any rule, regulation, interpretation or representation hereby position of the SEC applicable to the Offer; and (z) extend the Offer for any reason for a period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under this Section 1.01(a). It is made or shall agreed that the conditions to the Offer are for the benefit of Parent and Merger Sub and may be made asserted by Parent or Merger Sub regardless of the circumstances giving rise to any such condition (including any action or inaction by Parent or Merger Sub not inconsistent with the terms hereof). On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to information supplied by the Company expressly for inclusion inOffer, which shall contain, among other things, an offer to purchase and a related letter of transmittal and other ancillary documents (such Schedule 14D-l and the documents included therein pursuant to which the Offer will be made, together with any supplements or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inamendments thereto, the "Offer Documents"). Parent, Each of Parent and Merger Sub on the one hand, and the Company each agrees on the other hand, shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become such information is false or misleading in any material respect. , and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected amended or supplemented, supplemented to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s 's stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEClaws. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by promptly notify the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, regarding any comments (written or oral) that may be received by Parent, Merger Sub or their counsel receive from the SEC or its staff with respect to the Offer Documents and shall promptly after receipt thereof. The provide to the Company and its counsel copies of such written comments, if any. The Company shall be given a reasonable opportunity cooperate with Parent and Merger Sub in responding to review and comment upon any proposed responses before they are filed comments received from the SEC with respect to the SECOffer Documents.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date Subject to which the expiration of the Offer is extended pursuant to and in accordance with the terms and conditions of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. Provided that (a) Within ten business days (as such term is defined this Agreement shall not have been --------- terminated in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date accordance with Article VI hereof, Merger Sub shall, and Parent (b) the Share Tender Agreements shall cause Merger Sub to, (and the Company shall cooperate have been executed simultaneously with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and (c) the Board of Directors has taken action to eliminate any requirement that the satisfaction or waiver Salary Continuation Agreements Trust be fully funded for all current benefit obligations upon a change of control of the conditions Company, and so long as none of the events set forth in Annex B A hereto (the “"Tender Offer Conditions”)") shall have occurred and are continuing, Parent shall cause Merger Sub toas promptly as practicable, and Merger Sub shall, upon but in no event later than the expiration fifth business day after the public announcement of the execution of this Agreement, Sub shall commence the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation obligations of Merger Sub to accept for payment and promptly to pay for any shares of Common Stock validly tendered shall be subject solely only to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount , any of which may be waived by Parent and Sub; provided, -------- however, that, without the consent of the Company, Sub shall be net not waive the ------- condition that there shall have been validly tendered and not validly withdrawn prior to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No expiration of the Offer a number of shares of Common Stock held by which represent at least 70% of the total voting power of all shares of capital stock of the Company or its Subsidiaries shall outstanding on a fully diluted basis (the "Minimum Condition"). The Tender Offer Conditions are for the sole benefit of Parent and Sub and may be tendered pursuant asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Condition and, subject to the Offer.
(b) preceding sentence, may be waived by Parent on behalf of Merger and Sub in whole or in part. Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer, including, without limitation, except as provided below, to extend the Offer beyond any scheduled expiration date; provided, that however, without the prior written consent of the Company, Merger Company Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease reduce -------- ------- the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) amend modify or waive satisfaction of add to the Minimum Condition (as defined conditions set forth in Annex B), A or (iv) impose additional conditions to change the Offer or modify any conditions to the Offer in a manner adverse to the holders form of shares of Common Stock, (v) make any change consideration payable in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, the Offer may not be extended beyond any scheduled expiration date unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is shall not satisfied or waived by Parenthave been satisfied; provided, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Datehowever, (xi) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) even if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived have not been -------- ------- satisfied, the Offer may not be extended beyond the three month anniversary of the date of commencement of the Offer and it is permitted under applicable Law (ii) if the Tender Offer Conditions have been satisfied, then the Offer may be extended for an additional five business days so long as at the time of such extension, all conditions to accept for payment and pay for validly tendered Sub's obligations to purchase shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerare irrevocably waived.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Osullivan Corp)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated pursuant to Article XI and nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in paragraph (b) of Annex I, as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) promptly as practicable after the date hereofhereof and in any event within ten (10) Business Days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act▇▇▇▇ ▇▇▇) an offer the Offer to purchase any and all outstanding shares of Common Stock of the Company outstanding Shares at the purchase price of $16.00 per share of Common Stock (such priceOffer Price, or less any higher price per share of Common Stock paid by withholding Taxes. Merger Sub pursuant Sub’s obligation to accept for payment and pay for any Shares tendered in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and/or Merger Sub, represents at least a majority of the total number of Shares outstanding on a fully diluted basis (assuming conversion or exercise of all derivative securities or other rights to acquire Company Common Stock regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Per Share AmountMinimum Condition”) and shall, on to the date of commencement other conditions set forth in Annex I. Merger Sub expressly reserves the right to waive any of the conditions to the Offer but after affording and to make any change in the Company terms of or conditions to the Offer; provided that, without the prior consent of the Company, (i) the Minimum Condition may not be waived or amended and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith (ii) no change may be made that changes the form of consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents be paid pursuant to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject decreases the Offer Price or the number of Shares sought in the Offer, imposes conditions to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject addition to the terms and conditions of this Agreement and to the satisfaction those set forth in Annex I or waiver of modifies the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to I in any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner materially adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer DocumentsShares. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th twentieth (20th) Business Day following the after commencement of the Offer (determined using Rules in accordance with Rule 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act▇▇▇▇ ▇▇▇) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (x) without the consent of the Company, Merger Sub shall have the right to extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date of the Offer, Merger Sub shall, subject to the rights of the parties in Article XI, extend the Offer for one or more periods (each in the reasonable judgment of Merger Sub for the minimum period of time reasonably expected by the Merger Sub to be required to satisfy such conditions but in any event not in excess of twenty (20) Business Days each) until such conditions are satisfied or waived; provided, in each case, (A) if, at the initial Expiration Date all of the conditions to the Offer, except for the Minimum Condition, are satisfied or have been waived, Merger Sub shall only be required to extend the Offer and its expiration date beyond the initial Expiration Date for one or more additional periods not to exceed an aggregate of twenty (20) Business Days, and (B) in no event shall Merger Sub be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoingprior to its Expiration Date, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions Article XI hereof. If this Agreement is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended terminated pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereofArticle XI, Merger Sub may (in its sole discretion)shall, until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), and Parent shall cause Merger Sub to, promptly terminate the Offer and shall not acquire Shares pursuant thereto. If the Offer is terminated by Merger Sub, or this Agreement is terminated pursuant to Article XI prior to the acquisition of Shares in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with Applicable Law, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Sub shall, (i) as soon as practicable after the Expiration Dateand Parent shall cause it to, accept for payment and pay for for, as promptly as practicable after the expiration of the Offer, all shares of Common Stock Shares (i) validly tendered and not properly withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period (the date of acceptance time at which Shares are first accepted for paymentpayment under the Offer, the “Acceptance DateTime”).
(b) On the date of commencement of the Offer, which acceptance Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (collectively, together with any amendments or supplements thereto, the “Offer Documents”). The Company shall promptly upon request of Parent and Merger Sub provide Parent with all information concerning the Company that may be required by oral notice applicable securities laws or reasonably requested by Parent or Merger Sub for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the Paying Agentextent that such information shall have become (or shall become known to be) false or misleading in any material respect. Parent and Merger Sub shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) on a reasonable opportunity to participate in the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares response of Common Stock Parent and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub to those comments and to provide comments on a timely basis the funds necessary that response (to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerwhich reasonable and good faith consideration shall be given).
(gc) Promptly after the Acceptance Date, the Company Nothing in this Section 2.01 shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make affect any necessary filings and disclosures associated with such statustermination rights in Article XI.
Appears in 1 contract
The Offer. (a) Within ten business days (as such term is defined Provided that this Agreement shall not have --------- been terminated in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate accordance with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver none of the conditions set forth in Annex B A hereto (the “Tender Offer Conditions”)shall have occurred or be continuing, Parent shall cause ------- Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to commence the Offer and not validly withdrawn on as promptly as reasonably practicable after the Acceptance Datedate hereof, but in no event later than five (5) Business Days after the date hereof. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be Shares tendered pursuant to the Offer.
Offer shall be subject to (bi) the condition that at least the number of Shares that when added to Shares already owned by Parent and its direct and indirect wholly owned Subsidiaries, if any, shall constitute a majority of the then outstanding Shares on behalf a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of Merger Sub any outstanding convertible securities or upon the exercise of any outstanding options or warrants which are vested as of the date hereof or are capable of vesting during the ninety (90) day period following the consummation of the Offer and have an exercise price of $10.00 per Share or less) shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition") and (ii) there ----------------- shall not have occurred or be continuing any of the conditions set forth in Annex A hereto. Parent expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Conditionsuch condition, ------- to increase the Per Share Amount or Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made by Parent without the prior written consent of the Company, Merger Sub shall not Company which (iA) decrease decreases the Per Share Amount or change changes the form of consideration payable in the Offer (other than by adding consideration)Offer, (iiB) decrease waives the Minimum Condition, (C) reduces the maximum number of shares of Common Stock Shares to be purchased in the Offer, (iiiD) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any imposes conditions to the Offer in a addition to those set forth in Annex A hereto or (E) amends any term of the Offer in any other ------- manner materially adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereofShares. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger SubSub may, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date Offer beyond the scheduled expiration date, which shall be twenty (20) Business Days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Merger Sub's obligation to accept for payment Shares shall not be satisfied or waived, (ii) extend the Offer for any period required by the rules and regulations any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the "SEC"), --- or the NYSE AMEX (“NYSE AMEX”) staff thereof, applicable to the Offer, including in connection with or (iii) extend the Offer for an increase in aggregate period of not more than ten (10) Business Days beyond the Per Share Amount, latest applicable date that would otherwise be permitted under clause (i) or (ii) shall extend the Expiration Date of this sentence, if, on any then scheduled Expiration Dateas of such date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law conditions to Merger Sub's obligations to accept for payment and pay for Shares are satisfied or waived, but the number of Shares validly tendered shares of Common Stock that are and not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur withdrawn pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not Offer totals less than three nor more than 20 Business Days ninety percent (90%) of the issued and outstanding Shares on a fully diluted basis. The Per Share Amount shall, subject to any applicable withholding of Taxes, be net to the sellers of the Shares in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly cash, upon the satisfaction or waiver by Merger Sub terms and subject to the conditions of the Tender Offer. Subject to the terms and conditions of the Offer Conditions in accordance with Section 1.1(b)and this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon promptly as practicable following satisfaction of the Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Merger Sub expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Laws. Any such depositdelay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, cause as amended (the Paying Agent "Exchange Act"). If the payment equal to pay the Per Share ------------ Amount in cash is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all shares transfer and other Taxes required by reason of Common Stock so accepted for paymentthe payment of such amount to a Person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Merger Sub that such Taxes either have been paid or are not applicable. If this Agreement is terminated by Parent or by the Company, Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that to, and Merger Sub becomes obligated to purchase pursuant to shall, terminate promptly the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days Subject to the provisions of this Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement and (ii) Merger Sub shall, as soon as practicable, but in no event later than five Business Days after the date of such term is defined in announcement, commence (within the meaning of Rule 14d-1(g)(314d-2(a) promulgated under of the Exchange Act) a tender offer (the "Offer") to purchase ----- all of the outstanding shares of Company Common Stock at a price of $10.00 per share, “net to the seller in cash without interest (the "Price Per Share"), --------------- subject to reduction only for any applicable withholding taxes. The Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment, purchase and pay for shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) at least that number of shares of Company Common Stock equivalent to 75% of the Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer (subject to reduction as described below, the "Minimum Shares") being validly tendered and not withdrawn prior to -------------- the expiration of the Offer and (ii) the satisfaction of the other conditions set forth in Annex A hereto, any of which conditions may be waived by Merger Sub ------- in its sole discretion; provided, however, that Merger Sub shall not reduce the Minimum Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall (i) decrease the Price Per Share payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer below a majority of the Fully Diluted Shares of Company Common Stock or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer (including the conditions set forth in Annex A hereto) ------- or impose additional conditions to the Offer, (iv) except as provided below, change the expiration date of the Offer, or (v) otherwise amend, add or waive any term or condition of the Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days”) Days after the commencement date hereofof the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days without the Company's prior written consent, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); provided further that if on any scheduled expiration date of the Offer all conditions to the Offer (other than the Minimum Shares) have been satisfied or waived, and the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent at least a majority of the Fully Diluted Shares of Company Common Stock, and Merger Sub does not elect to reduce the Minimum Shares and consummate the Offer, then Merger Sub shall, at the Company's request, on up to three occasions, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer and (y) extend the Offer if (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of Company Common Stock; provided, however, that in no event shall the extensions permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Assuming the prior satisfaction or waiver of all the conditions to the Offer set forth in Annex A, and subject to the terms and conditions of this Agreement, Merger Sub ------- shall, and Parent shall cause Merger Sub to, (accept for payment, purchase and the Company shall cooperate pay for, in accordance with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (as soon as reasonably practicable after the date expiration of acceptance for paymentthe Offer. Parent shall provide, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agentprovided, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub Sub, on a timely basis basis, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Zhone Technologies Inc)
The Offer. (a) Within ten Subject to the terms and conditions of this Agreement, as promptly as practicable (but in no event later than seven business days after the date of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (as such term is defined the “SEC”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of the Offer shall be 12:00 midnight, New York City time, on the 20th business day (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated under thereunder, the “Exchange Act”)) following the commencement (within the meaning of Rule 14d-2 of the Exchange Act) of the Offer. Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the Offer in any manner not inconsistent with this Agreement, except that, without the consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) change the form of consideration payable in the Offer, (iv) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (v) impose conditions or requirements to the Offer other than the Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (vi) except as otherwise provided in this Section 1.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vii) otherwise amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “Business Days”) after subsequent offering period” in accordance with Rule 14d-11 of the date hereofExchange Act. Notwithstanding the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, (A) extend the Offer for one or more consecutive increments of not more than five business days each (or for such longer period as may be agreed by the Company), if at the scheduled expiration date of the Offer any of the Offer Conditions (other than the Minimum Tender Condition) shall not have been satisfied or waived, until such time as such conditions shall have been satisfied or waived and (B) extend the Offer for the minimum period required by any rule, regulation or interpretation or position of the SEC or the staff thereof applicable to the Offer; provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Company Minimum Tender Condition shall cooperate with not have been satisfied, Merger Sub shall have the right to (and, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to) commence extend the Offer for one or more consecutive increments of not more than five business days each (or for such longer period as may be agreed by the Company); provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer and, in any event, no more than three business days after the Acceptance Time. The time at which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is referred to as the “Acceptance Time”. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in accordance with Section 8.01. If this Agreement is terminated in accordance with Section 8.01 prior to the Acceptance Time, Merger Sub shall, and Parent shall cause Merger Sub to, immediately, irrevocably and unconditionally terminate the Offer and Merger Sub shall neither acquire nor pay for shares of Company Common Stock pursuant to the Offer. If the Offer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and Parent and Merger Sub shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.01(a) shall affect any termination rights set forth in Section 8.01.
(b) As promptly as practicable on the date of commencement (within the meaning of Rule 14d-2 promulgated under of the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, Parent and Merger Sub shall file with the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with all any exhibits, supplements or amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), ) and shall consummate disseminate the Offer, subject to the terms and conditions hereof and thereof. The appropriate Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company, Merger Sub shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Company Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) . The Company shall not limit the right of furnish to Parent and Merger Sub to extend all information concerning the Expiration Date as Company required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect Exchange Act to Company information derived from the Company SEC Filings that is included or incorporated by reference in, be set forth in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TOOffer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities Laws. The Parent and Merger Sub shall provide the Company and its counsel with copies of any written comments, and shall be given inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except with respect to any amendments after an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on any such Offer Documents or response (including each amendment or supplement thereto) before they are filed with the SEC. proposed final version thereof), and Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECcounsel.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(gd) Promptly after Parent and Merger Sub shall be entitled to deduct and withhold from the Acceptance Dateconsideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent or Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the Company “Code”), or any provision of state, local or foreign Tax Law. Amounts so withheld and paid over to the appropriate taxing authority shall take all action requested by Parent necessary to elect to be treated for all purposes of this Agreement as a “controlled company” as defined by Section 801(a) having been paid to the holder of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with Common Stock in respect of which such statusdeduction or withholding was made.
Appears in 1 contract
Sources: Merger Agreement (AveXis, Inc.)
The Offer. (a) Within ten Subject to the conditions of this Agreement, as promptly as practicable but in no event later than five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereofof the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and commence the Company shall cooperate with Merger Sub to) commence (Offer within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares applicable rules and regulations of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “"SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”"), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions obligations of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger of Parent to cause Sub shallto, upon commence the expiration of the Offer, Offer and accept for payment, and pay for (after giving effect to for, any required withholding or stock transfer Tax), all shares of Target Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be are subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller conditions set forth in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Exhibit A. Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender condition to the Offer Condition, to increase the Per Share Amount or to make any other changes in amend or modify the terms and conditions of the Offer; provided, that except that, without the prior written consent of the CompanyTarget, Merger Sub shall not (i) decrease reduce the Per Share Amount number of shares of Target Common Stock subject to the Offer, (ii) reduce the price per share of Target Common Stock to be paid pursuant to the Offer, (iii) waive the Minimum Tender Condition, add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Target Common Stock, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or otherwise amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of Target Common Stock. Notwithstanding the foregoing, Sub may, without the consent of Target, (A) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Sub's obligation to purchase shares of Target Common Stock in their capacities are not satisfied, until such time as holders such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (C) extend the Offer for any reason on one or more occasions for a period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence. Parent and Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond the Outside Date. On the terms and subject to the conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, pay for all shares of Target Common StockStock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(cb) No agreement On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to Target's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation hereby or warranty is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly Target or any of its stockholders specifically for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated incorporation by reference in, in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees Target shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected amended or supplemented, supplemented to be filed with the SEC and the Offer Documents, Documents as so corrected amended or supplemented, supplemented to be promptly disseminated to the Company’s Target's stockholders, in each case as and to the extent required by applicable Federal securities Lawslaws. The Company Target and its counsel shall be given a reasonable opportunity to review and comment on any upon the Offer Documents (including each amendment or supplement thereto) before they are filed prior to their filing with the SECSEC or dissemination to the stockholders of Target. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company provide Target and its counsel in writing with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SECof such comments.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Target Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Section 9.1 and the Company is prepared in accordance with Section 2.2(a) to file with the SEC, and to disseminate to the Stockholders, the Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable (as such term is defined but in Rule 14d-1(g)(3) promulgated under the Exchange Act, “no event later than 10 Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act), the Offer.
(b) an offer The obligations of Merger Sub to, and of Parent to purchase all outstanding cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, are subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver (as provided in Section 2.1(c) below) of the conditions set forth in Annex B hereto I (the “Tender Offer Conditions”). On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) promptly on or after the Expiration Date (and in any event within three business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)). The acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Closing occurs is referred to in this Agreement as the “Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub on a timely basis funds necessary to purchase and pay for any and all shares of Company Common Stock that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer. Parent and Merger Sub shall, upon the expiration and each of the Offer, accept for payment, Parent and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for shall ensure that all of their respective controlled Affiliates shall, tender any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Company Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to them into the Offer.
(bc) Parent on behalf of and Merger Sub expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender of the Offer Conditions other than the Minimum Condition, to increase the Per Share Amount Offer Price or to make any other changes in the terms and conditions of the OfferOffer not inconsistent with the terms of this Agreement; providedprovided that, that without unless otherwise provided in this Agreement or previously approved by the prior written consent of the CompanyCompany in writing, Parent and Merger Sub shall not not: (i) decrease the Per Share Amount Offer Price or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease the maximum number of shares of Company Common Stock subject to or sought to be purchased in the Offer, (iii) amend or waive satisfaction of impose conditions on the Minimum Condition (as defined Offer in Annex B), (iv) impose additional conditions addition to the Offer Conditions or amend, modify or supplement any conditions to the Offer condition in a manner adverse to the holders of shares of Common StockStockholders, (iv) waive, modify or amend the Minimum Condition, (v) make amend any change in other term of the Offer in a manner that would require an extension is materially adverse to the Stockholders or delay of the then current Expiration Date; provided, however, that this clause (vvi) shall not limit the right of Parent and Merger Sub to extend or otherwise change the Expiration Date except as required or permitted by Section 1.1(d2.1(e). The Offer may not be terminated prior to the Expiration Date, unless this Agreement is terminated or withdrawn in accordance with Section 9.1.
(vid) modify or amend On the date the Offer is commenced, Merger Sub shall, and Parent shall cause Merger Sub to, file with the SEC a Tender Offer Conditions (other than Statement on Schedule TO with respect to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO and the case of clauses (vidocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”) and (vii), in any manner adverse cause the Offer Documents to be disseminated to the holders Stockholders to the extent required by applicable Law. The Company hereby consents to the inclusion of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, Recommendation in the Offer Documents. Parent, Merger Sub shall, and Parent shall cause Merger Sub to, cause the Offer Documents to comply in all material respects with the Exchange Act, the rules and regulations thereunder, and other requirements of applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company, the Company Subsidiaries and the Company each Stockholders that may be required to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 2.1(d), including communication of the Offer to the record and beneficial Stockholders. Each of the parties agrees to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and to correct any material omissions therefrom, and Parent and Merger Sub shall further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholdersStockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer DocumentsLaw. Parent and Merger Sub shall provide the Company and its counsel with (in writing, if written), and shall consult with the Company regarding, any comments (written or oralincluding a summary of any oral comments) that may be received by Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt thereofof such comments. The Except from and after a Company Adverse Recommendation Change or in connection with any disclosures by Parent or Merger Sub in response to any public announcement expressly permitted by Section 7.8(f), prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the Stockholders, or responding to any comments of the SEC with respect to the Offer Documents, Parent and its counsel Merger Sub shall be given provide the Company with a reasonable opportunity to review and comment upon on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any proposed responses before they are filed with comments provided by the SECCompany. Parent and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(de) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, Unless extended or such subsequent date to which the expiration of the Offer is extended earlier terminated pursuant to and in accordance with the terms of this Agreement, the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 2.1(e), calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Agreement or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN(i) if on the then-effective Expiration Date, Merger Sub, without the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied or waived by Parent or Merger Sub obtaining the consent of the Companyif permitted hereunder, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Dateshall, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of not more than 10 Business Days each (the length of such period to be determined by Parent and Merger Sub in their discretion), or for such longer period as the parties may agree in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Merger Sub to waive any Offer Conditions, other than the Minimum Condition); provided that, if all Offer Conditions other than the Minimum Condition have been satisfied or waived, Merger Sub shall not be required to extend the Offer pursuant to this clause (i) for more than 20 Business Days and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff; provided that Merger Sub shall not in any event be required to extend the Offer beyond the Outside Date. In the event that this Agreement is validly terminated pursuant to Section 9.1, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (i) as soon as practicable after and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Expiration DateOffer, accept for payment and pay for all shall not acquire any shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date and shall cause any depositary acting on behalf of acceptance for paymentMerger Sub to return, the “Acceptance Date”)in accordance with applicable Law, which acceptance may be by oral notice all Tendered Shares to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerregistered holders thereof.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten Subject to the conditions of this Agreement, as promptly as practicable (but in no event later than eight business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”days) after the date hereofof this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (commence, within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act) an offer ”), the Offer to purchase all of the outstanding shares of Company Common Stock; provided, that the Company agrees that no shares of Company Common Stock of owned by the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub will be tendered pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions obligations of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and of Parent to cause Merger Sub shall, upon the expiration of the Offerto, accept for payment, and pay for (after giving effect to for, any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be are subject solely only to the satisfaction or waiver by Merger Sub of conditions set forth in Exhibit A (as they may be amended in accordance with this Agreement, the Tender “Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer”).
(bi) Parent The initial expiration date of the Offer shall be midnight, New York City time, on behalf the 20th business day following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Merger Sub expressly reserves the right from time to right, at any time, subject to Section 1.1(c) and Section 1.1(d)to, in its sole discretion, to waive waive, in whole or in part, any Tender Offer Condition, to increase the Per Share Amount Condition or to make any other changes in modify the terms and conditions of the Offer; provided, that however, that, without the prior written consent of the Company, Merger Sub shall not (iA) decrease reduce the Per Share Amount number of shares of Company Common Stock subject to the Offer, (B) reduce the Offer Price or change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iiiC) amend change, modify or waive satisfaction of the Minimum Tender Condition (as defined in Annex BExhibit A), (ivD) impose additional conditions add to the Offer Conditions, or modify any conditions to (E) otherwise amend the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Company Common Stock.
(cii) No agreement Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, any of the conditions to the offer (including the Minimum Tender Condition and the other conditions and requirements set forth herein and in Exhibit A) is not satisfied or, in Merger Sub’s sole discretion, waived, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of time to be determined at the sole discretion of the Merger Sub; provided, however, that in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or representation hereby is made or shall be made by (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII.
(iii) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after Merger Sub is legally permitted to do so under applicable Law. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer upon the expiration of the Offer is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, following the Offer Closing, extend the Offer for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (as defined below) may, in Merger Sub’s sole discretion, provide for such a reservation of right. Nothing contained in this Section 1.1(a) shall affect any termination rights in ARTICLE VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to information supplied by the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and other appropriate ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”), and cause the Offer Documents to be disseminated to the stockholders of the Company expressly for inclusion in, or with respect as and to Company information derived from the Company SEC Filings that is included or incorporated extent required by reference in, the Offer Documentsfederal securities laws. Each of Parent, Merger Sub and the Company each agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected amended or supplemented, supplemented to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the stockholders of the Company’s stockholders, in each case as soon as reasonably practicable and as and to the extent required by applicable Federal federal securities Lawslaws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment on any such Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. response, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments such comments. In the event that Parent or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, receives any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to (i) respond promptly after receipt thereof. The Company to such comments and its counsel shall be given a reasonable opportunity (ii) take all other actions necessary to review and comment upon any proposed responses before they are filed with resolve the SECissues raised therein.
(dc) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds consideration necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the OfferOffer and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.
(gd) Promptly after Parent, Merger Sub or the Acceptance Datepaying agent for the Offer (the “Paying Agent”) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Merger Sub or the Company Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations issued pursuant thereto (the “Code”), or any provision of state or local Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate taxing authority, such withheld amounts shall take all action requested by Parent necessary to elect to be treated for all purposes of this Agreement as a “controlled company” as defined by Section 801(a) having been paid to the holder of the NYSE AMEX shares of Company Guide Common Stock in respect of which such deduction and make any necessary filings and disclosures associated with such statuswithholding was made by Parent, Merger Sub or the Paying Agent.
Appears in 1 contract
Sources: Merger Agreement (Nupathe Inc.)
The Offer. (a) Within ten business days (as such term is defined i) Provided that this Agreement has not been terminated in Rule 14d-1(g)(3) promulgated under the Exchange Actaccordance with ARTICLE VIII hereto, “Business Days”) after the date hereof, Merger Sub shallPurchaser will, and Parent shall will cause Merger Sub Purchaser to, promptly (and but in no event later than the Company shall cooperate with Merger Sub totenth (10th) Business Day after (but not including) the date of this Agreement) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) an offer the Offer to purchase all outstanding shares of Common Stock of Shares at the Offer Price; provided, however, that Purchaser shall not be required to commence the Offer (and the ten (10) Business Day period referred to above shall be accordingly extended) if (i) the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid shall not have provided to Parent on a timely basis all information reasonably requested by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case Parent in connection with the preparation of the Offer Documents or the Company shall not have reviewed and provided comments to Parent on the Offer Documents on a timely basis, or (ii) the “Offer Documents”)Company is not prepared to, concurrently with such commencement, file with the SEC and shall consummate disseminate to holders of Shares the Offer, subject to the terms and conditions hereof and thereofSchedule 14D-9. The Offer Documents will comply in all material respects with the provisions obligations of all applicable Federal securities Laws. Subject Purchaser (and of Parent to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub Purchaser) to accept for payment and to pay for any shares of Common Stock validly Shares tendered shall pursuant to the Offer will be subject solely only to the satisfaction or waiver by Merger Sub of those conditions set forth in ANNEX I (the “Offer Conditions”). The initial expiration date of the Tender Offer Conditions. The Per Share Amount shall will be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares twentieth (20th) Business Day following (and including the day of) the commencement of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub . Purchaser expressly reserves the right (but will not be obligated) at any time or from time to time, subject to Section 1.1(c) and Section 1.1(d), time in its sole discretion, discretion to waive any Tender Offer Condition, to increase the Per Share Amount Condition or to make any other changes in modify or amend the terms and conditions of the Offer; provided, that except that, without the prior written consent of the Company, Merger Sub shall Purchaser will not (i1) decrease the Per Share Amount Offer Price or change the form of the consideration payable in the Offer (other than by adding consideration)Offer, (ii2) decrease the number of shares of Common Stock Shares sought pursuant to be purchased in the Offer, (iii3) amend or waive satisfaction of the Minimum Tender Condition (as defined in Annex BANNEX I), (iv4) impose additional conditions add to the Offer or conditions set forth on ANNEX I, (5) modify any the conditions to the Offer set forth on ANNEX I in a manner adverse to the holders of shares of Common StockShares, (v6) make any change in extend the expiration date of the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date except as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition1.1(a)(iii) or (vii7) modify or amend make any other term change in the terms or conditions of the Offer, in the case of clauses (vi) and (vii), in any manner Offer that is materially adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common StockShares.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.1 and the other terms of this Agreement and (ii) none of the events set forth in Annex A attached hereto shall have occurred and are continuing, unless otherwise agreed by Parent and the Company, within ten business (10) days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (and to commence the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid Offer. Each Share accepted by Merger Sub pursuant to the Offer shall be exchanged for the right to receive from Merger Sub the Merger Consideration (defined in Section 2.6(a) below). The initial expiration date of the Offer shall be the twentieth business day following commencement of the Offer. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, Offer prior to the “Per Share Amount”) and shall, on the expiration date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file not withdrawn at least a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders number of shares of Company Common Stock, as required by Rule 14d-4 promulgated under Stock that represents a majority of the Exchange Act, in each case in connection with the Offer shares of Company Common Stock outstanding on a Fully Diluted Basis (the “Offer Documents”"Minimum Condition"), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the other conditions set forth in Annex B hereto (----------------- A hereto. As used herein, "Fully Diluted Basis" shall mean after taking into account all currently outstanding shares of Company Common Stock and assuming the “Tender Offer Conditions”)exercise or conversion of all options, Parent shall cause Merger Sub towarrants, convertible securities and Merger Sub shall, upon similar rights and the expiration issuance of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered that the Company is obligated to issue thereunder other than pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the OfferTransaction Option Agreement.
(b) Parent on behalf of and Merger Sub expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender of the conditions to the Offer Condition, and to increase the Per Share Amount amend or to make any other changes in modify the terms and conditions of the Offer; provided, that except that, without the prior written consent of the Company, Merger Sub shall not (and Parent shall not cause Merger Sub to)
(i) decrease the Per Share Amount or number of Shares sought in the Offer, (ii) change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offerpaid, (iii) amend waive or waive satisfaction of increase the Minimum Condition (as defined in Annex B), (iv) or impose additional conditions to the Offer or modify any material conditions to the Offer in a manner addition to those set forth in Annex A, (iv) extend the Offer (except as set forth herein or in the Offer), or (v) make any other change to any of the terms and conditions to the Offer which is materially adverse to the holders of shares Shares. Subject only to the terms of Common Stock, (v) make any change in the Offer that would require an extension and this Agreement and the satisfaction (or delay waiver to the extent permitted by this Agreement) of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub conditions to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to be filed with the SEC and the Offer Documentsas soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after acceptance; provided that, as so corrected unless this Agreement is terminated pursuant to Article VIII, (x) Merger Sub may in its sole discretion, without the consent of the Company and shall, at the request of the Company, extend the Offer for successive extension periods not in excess of 10 business days each if, at the scheduled expiration date of the Offer or supplementedany extension thereof, to be promptly disseminated any of the conditions to the Company’s stockholdersOffer shall not have been satisfied or waived, in each case until such times as such conditions are satisfied or waived, and (y) Merger Sub may extend the Offer for any period if and to the extent required by the applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX United States Securities and Exchange Commission (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount"SEC"), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereofaddition, Merger Sub may (in its sole discretion), until extend the Outside Date, provide Offer after the acceptance of Shares thereunder for a “further period of time beyond the latest expiration date that would otherwise be permitted under this Section by means of a subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with period under Rule 14d-11 promulgated under the Exchange Act.
, of not more than 20 business days to meet the objective (fwhich is not a condition to the Offer) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions that there be validly tendered, in accordance with Section 1.1(b)the terms of the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after prior to the Expiration Date, accept for payment and pay for all shares expiration date of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date as so extended) and not withdrawn a number of acceptance for payment, the “Acceptance Date”)Shares, which acceptance may be together with Shares then owned by oral notice to Parent and Merger Sub, represents at least 90% of the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub Shares outstanding on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the OfferFully Diluted Basis.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
Sources: Merger Agreement (Cytyc Corp)
The Offer. (a) Within ten business days Provided that this Agreement shall not have been terminated in accordance with Section 6.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, then as promptly as reasonably practicable following the execution of this Agreement (as such term is defined but in Rule 14d-1(g)(3no event later than fifteen (15) promulgated under the Exchange Act, “Business Days”) after Days following the date hereof), Merger Sub shall, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer the Offer to purchase for cash all outstanding the shares of Company Common Stock at the Offer Price; provided, however, that Merger Sub shall not commence the Offer prior to the tenth Business Day following the date hereof without the prior written consent of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereofCompany. The Offer Documents will comply in all material respects with the provisions obligations of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and of Parent to cause Merger Sub shall, upon the expiration of the Offerto, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax)for, all shares of Company Common Stock validly tendered pursuant to the Offer on or prior to the final expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn on prior to the Acceptance Datefinal expiration of the Offer that number of shares of Company Common Stock which, together with the shares of Company Common Stock then beneficially owned by the Parent or Merger Sub (including, without limitation, the shares of Company Common Stock to be sold to Merger Sub pursuant to the Stock Purchase Agreement), represents at least 66-2/3% of the outstanding shares of Company Common Stock (the "Minimum Condition") and (ii) the other conditions set forth in Annex I hereto. The obligation Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by Parent or Merger Sub of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, Merger Sub shall, in accordance with the terms of the Offer, promptly after the expiration of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause Merger Sub to accept for payment and to pay for any for, all shares of Company Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered and not withdrawn pursuant to the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Each of Parent and Merger Sub agrees that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that Merger Sub's obligation to purchase shares of Company Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) Business Days following the commencement of the Offer (the "Initial Expiration Date"). Parent and Merger Sub shall have the right to extend the Offer for one ten Business Day period for any reason in their sole discretion. The latest time and date at which the Offer, as may be extended beyond the Initial Expiration Date as permitted or required by this Section 1.1(a), shall expire shall not be later than the Outside Date (except as may otherwise be required by rule, regulation, interpretation, or position of the SEC or its staff) and is herein referred to as the "Expiration Date.
(b) Parent on behalf of " Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer; provided, that except that, without the prior written consent of the CompanyCompany (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither Parent nor Merger Sub shall not (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Per Share Amount or Offer Price, (iii) change the form of consideration payable in the Offer (other than by adding consideration)Offer, (iiiv) decrease the number of shares of Company Common Stock to be purchased sought in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (ivv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d)Offer, (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, conditions set forth in the case of clauses (vi) and (vii), Annex I in any manner adverse to the holders of the shares of Company Common Stock Stock, (vii) amend any other term of the Offer in their capacities as a manner that is adverse to the holders of the shares of Company Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, (viii) extend the Offer Documentsexcept as expressly permitted or required by this Section 1.1(a). Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Each of Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before agree that they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other than conditions to the Offer described in connection with the effective termination of this Agreement in accordance with Section 7.1 hereofAnnex I shall not have been satisfied or earlier waived. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.:
Appears in 1 contract
The Offer. (a) Within ten Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereofof the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, (and commence the Company shall cooperate with Merger Sub to) commence (Offer within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase all outstanding shares applicable rules and regulations of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “"SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”"), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions obligations of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and of Parent to cause Merger Sub shall, upon the expiration of the Offerto, accept for payment, and pay for (after giving effect to for, any required withholding or stock transfer Tax), all shares of Company Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be are subject solely to the satisfaction or waiver by Merger Sub of the Tender conditions set forth in Exhibit A. The Offer Conditions. The Per Share Amount Price shall be net to the seller in cash, without interest, subject to reduction only for any applicable federal back-up withholding or stock transfer Taxes taxes payable by such sellerseller as provided in Section 2.09(g). No The Company agrees that no shares of Company Common Stock held by the Company or its Subsidiaries shall will be tendered pursuant to the Offer. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer. Notwithstanding anything to the contrary in this Agreement, if between the date of this Agreement and the Effective Time the outstanding shares of Company Common Stock have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares of Company Common Stock, the Offer Price will be correspondingly adjusted on a per share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares of Company Common Stock.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender condition to the Offer Condition, to increase the Per Share Amount or to make any other changes in modify the terms and conditions of the Offer; provided, that except that, without the prior written consent of the Company, Merger Sub shall not (i) decrease reduce the Per Share Amount number of shares of Company Common Stock subject to the Offer, (ii) except in the circumstances set forth in the last sentence of Section 1.01(a), reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock (the "STOCKHOLDERS"), (iv) except as provided below in this Section 1.01(b), extend the Offer, (v) change the form of consideration payable in the Offer (other than by adding consideration), (ii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or otherwise amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders Stockholders. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension nor thirty days in the aggregate) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension nor thirty days in the aggregate) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that Merger Sub shall not be required to extend the Offer (i) if any condition to the Offer is not capable of completion prior to the Drop Dead Date despite the compliance by the parties hereto with their respective obligations under this Agreement or (ii) beyond the Drop Dead Date (as defined in Section 7.01(b)). Merger Sub may elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), following its acceptance for payment of shares of Company Common Stock in their capacities as holders the Offer. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common StockStock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(c) No agreement or representation hereby is made or shall be made by Parent or As soon as practicable on the date of the public announcement of the Offer, Merger Sub will file or cause to be filed with the SEC the joint press release announcing the Offer under cover of Schedule TO. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to information supplied by the Company expressly for inclusion inOffer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and other ancillary Offer documents (such Schedules TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference inamendments thereto, the Offer Documents"OFFER DOCUMENTS"). Each of Parent, Merger Sub and the Company each agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect. , supplement the information provided by it for use in the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected amended or supplemented, supplemented to be filed with the SEC and the Offer Documents, as so corrected amended or supplemented, to be promptly disseminated to the Company’s stockholdersStockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities Lawslaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any upon the Offer Documents (including each amendment or supplement thereto) before they are filed prior to their filing with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration SEC or dissemination to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer DocumentsStockholders. Parent and Merger Sub shall provide to the Company with and its counsel in writing any written comments (in writingand orally, if writtenany oral comments), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. The of such comments and shall consult with the Company and its counsel shall be given a reasonable opportunity prior to review and comment upon responding to any proposed responses before they are filed with the SECsuch comments.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VIII and none of the events set forth in paragraphs (a) through (k) of Annex A hereto shall have occurred or be existing, Purchaser shall, and Parent shall cause Purchaser to, (i) "commence" (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than 10 business days after initial public announcement of the execution of this Agreement and (ii) cause the Offer to remain open until the twentieth business day after such commencement of the Offer (the "Initial Expiration Date"). Purchaser shall be obligated, and Parent shall cause Purchaser, to accept for payment and pay for Shares validly tendered and not properly withdrawn pursuant to the Offer, subject only to the satisfaction of each of the conditions set forth in Annex A hereto (the "Offer Conditions"). At the Company's request, Purchaser will, and Parent shall cause Purchaser to, extend the Offer after the Initial Expiration Date for one or more periods not to exceed an aggregate of 15 business days if the Minimum Condition (as such term is defined in Rule 14d-1(g)(3Annex A hereto) promulgated under has not been satisfied at the Exchange ActInitial Expiration Date. Subject to the prior satisfaction of the Offer Conditions, “Business Days”) after the date hereof, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, (consummate the Offer in accordance with its terms and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) an offer to purchase accept for payment all outstanding shares of Common Stock of the Company at the purchase price of $16.00 per share of Common Stock (such price, or any higher price per share of Common Stock paid Shares validly tendered and not properly withdrawn by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, 9:00 A.M. Eastern Time on the date of commencement of the Offer but next business day after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered pursuant to the Offer.
(b) Parent on behalf of Merger Sub Purchaser expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any Tender Offer Condition, to or increase the Per Share Amount or payable in the Offer and to make any other changes in the terms and conditions of the Offer; provided, that however, that, without the prior written consent of the Company, Merger Sub Purchaser shall not, and Parent shall not permit Purchaser to, (i) decrease the Per Share Amount or change the form of consideration payable in the Offer (other than by adding consideration)Offer, (ii) decrease reduce the number of shares of Common Stock Shares subject to be purchased in the Offer, (iii) amend or waive satisfaction of impose conditions to the Minimum Condition (as defined Offer in Annex B)addition to the Offer Conditions, (iv) impose additional conditions to reduce or waive the Offer Minimum Condition, or modify any conditions to (v) change the Offer in a manner adverse to the holders of shares the Shares. Notwithstanding the foregoing, Purchaser may, without the consent of Common Stockthe Company, (vi) make any change in extend the Offer that would require an extension for one or delay more periods of not more than 5 business days each beyond the then current Initial Expiration Date; provided, howeverif, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend at any other term scheduled expiration of the Offer, any of the Offer Conditions shall not be satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof, applicable to the Offer (provided that Purchaser shall keep the Company reasonably informed of Purchaser's or Parent's contact with the SEC or the staff thereof with respect to the Offer). The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the case terms and subject to the conditions of clauses the Offer. Purchaser shall, and Parent shall cause Purchaser to, pay for all Shares validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Laws. Any such delay shall be effected in compliance with SEC Rule 14e-1(c) under the Exchange Act. Purchaser may extend the Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period under SEC Rule 14d-11 under the Exchange Act of not more than 20 business days to meet the objective that there be validly tendered, in accordance with the terms of the Offer, prior to the expiration of the Offer (vi) and (viias so extended), in any manner adverse and not withdrawn, a number of Shares which, together with Shares then beneficially owned by Parent and Purchaser and their direct and indirect subsidiaries, represents at least 90% of the then outstanding Shares on a Fully Diluted Basis. If the payment equal to the holders Per Share Amount in cash (the "Merger Consideration") is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of shares the Company, it shall be a condition of Common Stock payment that the certificate so surrendered shall be endorsed properly with signature guaranteed and otherwise be in their capacities as holders proper form for transfer, and that the person requesting such payment shall have paid all transfer and other Taxes required by reason of shares the payment of Common Stockthe Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(cb) No agreement or representation hereby is made or On the date of commencement of the Offer, Purchaser and Parent shall be made by Parent or Merger Sub file with the SEC a Tender Offer Statement on Schedule TO (together with all exhibits, amendments and supplements thereto, the "Schedule TO") with respect to information supplied by the Company expressly for inclusion inOffer. The Schedule TO and the Schedule 13E-3 (as defined in Section 1.03 below) shall comply in all material respects with the provisions of the Exchange Act, the rules and regulations promulgated thereunder and all other applicable Laws, and shall contain or with respect to Company information derived from the Company SEC Filings that is included or incorporated shall incorporate by reference inan offer to purchase relating to the Offer (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all exhibits, supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Each of Parent, Merger Sub Purchaser and the Company each agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent any Schedule 13E-3 that it shall have become false or misleading in any material respect. , and Parent and Merger Sub shall Purchaser further agree to take all steps necessary to cause the Schedule TOTO and any Schedule 13E-3, as so corrected or supplementedcorrected, to be filed timely with the SEC SEC, and the other Offer Documents, as so corrected or supplementedcorrected, to be promptly disseminated to the Company’s stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities Lawslaws. The Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on any the Offer Documents (including each amendment or supplement thereto) before they are and any Schedule 13E-3 prior to such documents being filed with the SECSEC or disseminated to holders of Shares. Parent and Merger Sub Purchaser shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by provide the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents and any Schedule 13E-3 promptly after the receipt thereof. The of such comments and shall provide the Company and its counsel shall be given with a reasonable opportunity to review and comment upon any proposed responses before they are filed with participate in the SEC.
(d) The initial expiration date response of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) Parent and 14d-2 promulgated under the Exchange Act) (Purchaser to such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVENcomments.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 1 contract
The Offer. (a) Within ten Subject to the provisions of this Agreement and this Agreement not having been terminated in accordance with Article 10 hereof, as promptly as practicable but in any event within five business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Exchange Act, “Business Days”) after the date hereof, Merger Sub shallshall commence, and Parent shall cause Merger Sub to, (and the Company shall cooperate with Merger Sub to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations promulgated thereunder, an offer to purchase (the "Offer") all of the outstanding shares of Common Stock of the Company at the purchase a price of $16.00 3.46 per share of Common Stock (such price, or any higher price per share of Common Stock paid by Merger Sub pursuant to the terms of the Offer, the “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and its counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer Documents will comply in all material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex B hereto (the “Tender Offer Conditions”), Parent shall cause Merger Sub to, and Merger Sub shall, upon the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and not validly withdrawn on the Acceptance Date. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, without interestinterest (such price or any higher price paid pursuant to the Offer, subject to reduction for any applicable withholding or stock transfer Taxes payable by such sellerthe "Offer Consideration"). No Notwithstanding the foregoing, if between the date of this Agreement and the closing of the Offer the outstanding shares of Common Stock held shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Company or its Subsidiaries Offer Consideration shall be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Purchaser and Merger Sub to commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the OfferOffer shall be subject to the conditions set forth in Exhibit A hereto and to the terms and conditions of this Agreement. Subject to the provisions of this Agreement, the Offer shall expire 20 business days after the date of its commencement (the "Initial Offer Expiration Date"), unless this Agreement is terminated in accordance with Article 10, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) Parent on behalf of Purchaser and Merger Sub expressly reserves reserve the right from time to time, subject to Section 1.1(c) and Section 1.1(d)right, in its their sole discretion, to modify the terms of the Offer and to waive any Tender Offer Condition, to increase the Per Share Amount or to make any other changes in the terms and conditions condition of the Offer; provided, that except that, without the prior written consent of the Company, Merger Sub shall not (and Purchaser shall cause Merger Sub not to) (i) decrease waive the Per Share Amount or Minimum Condition (as defined in Exhibit A), (ii) reduce the number of shares of Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) except as set forth below, extend the Offer, (v) change the form of consideration payable in the Offer, (vi) amend or modify any term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner adverse to any holder of Common Stock or (vii) impose additional conditions to the Offer other than such conditions required by adding considerationapplicable law. So long as this Agreement is in effect and the conditions to the Offer have not been satisfied or waived, Merger Sub may, without the consent of the Company, extend the expiration date of the Offer for one or more periods of up to ten additional Business Days each (but in no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the fortieth business day after the date of this Agreement). So long as this Agreement is in effect and the conditions to the Offer have been satisfied or waived and such conditions shall not apply to any extension pursuant to this sentence, Merger Sub may, without the consent of the Company, extend the Offer in accordance with Rule 14d-11 under the Exchange Act, if (iii) decrease the number of shares of Common Stock to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or (vii) modify or amend any other term of the Offer, in the case of clauses (vi) and (vii), in any manner adverse to the holders of shares of Common Stock in their capacities as holders of shares of Common Stock.
(c) No agreement or representation hereby is made or shall be made by Parent or Merger Sub with respect to information supplied by the Company expressly for inclusion in, or with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect. Parent and Merger Sub shall cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be promptly disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents (including each amendment or supplement thereto) before they are filed with the SEC. Parent and Merger Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counsel with respect to any Offer Documents. Parent and Merger Sub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than the Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such announcement is made less than ten Business Days prior to the Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock been validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such accepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.represent
Appears in 1 contract
Sources: Merger Agreement (Telelogic Ab)