The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurred, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. (b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 2 contracts
Samples: Merger Agreement (Ebro Puleva Partners G.P.), Merger Agreement (Riviana Foods Inc /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A hereto shall have occurredoccurred and be continuing, as promptly as practicable (but in no any event not later than seven (7) five business days following after the public announcement by Parent and the Company of the Offer execution and Mergerdelivery of this Agreement), Sub shall, and Parent shall cause Merger Sub to, commence, to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations thereunder, promulgated thereunder (the "Exchange Act")), an offer to purchase (the "Offer") all outstanding shares of Company Common Stock at a price of $15.00 per share, net to the seller in cash (such price or any higher price as paid pursuant to the Offer, the "Offer Consideration"). Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time the outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer at the Offer PriceConsideration 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 Parent and Merger Sub toto commence the Offer, and of Parent to cause Sub to, consummate the Offer and to accept for payment, payment and to pay for, any for Shares validly tendered in the Offer and not withdrawn pursuant to the Offer shall be subject only to the those conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offerhereto. The Offer Price shall be net to initially expire 20 business days after the seller in cash, without interest thereon, upon date of its commencement.
(b) Without the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (and Parent shall cause Merger Sub not to) (i) reduce decrease or change the form of the Offer Consideration or decrease the number of Shares subject sought pursuant to the Offer, (ii) reduce amend any term of the Offer Pricein any manner adverse to holders of Shares, (iii) impose any material change the conditions to the Offer other than Offer, (iv) impose additional conditions to the Offer, (v) waive the condition that there shall be validly tendered and not withdrawn prior to the time the Offer Conditions expires a number of Shares (together with any Shares then owned by Parent or modify any of its Subsidiaries) which constitutes a majority of the Offer Conditions Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" meaning, as of any date, the number of Shares outstanding (excluding any Shares held as treasury stock by Company or any of its Subsidiaries), together with the Shares which Company may be required to issue pursuant to obligations outstanding at that date under employee stock or similar benefit plans or otherwise (other than to waive any Offer Conditions to the extent permitted by this Agreementunvested Options); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; initial expiration date of the Offer (iiexcept that Merger Sub may, without the consent of Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase Shares is not satisfied, until such time as such condition is satisfied or waived, and (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"thereof); and (iv) after the Acceptance Dateprovided, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Acthowever, in each case subject to the right of Parentthat, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms except as set forth above and subject to applicable legal requirements, Merger Sub may amend the Offer or waive any condition to the Offer in its sole discretion. Assuming the prior satisfaction or waiver of the conditions of to the OfferOffer set forth in Exhibit A hereto, Merger Sub shall, and Parent shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the OfferOffer as soon as practicable after the expiration date thereof.
(bc) The Offer Parent shall provide or cause to be made by means of an offer provided to Merger Sub on a timely basis the funds necessary to purchase (the "Offer any Shares that Merger Sub becomes obligated to Purchase") subject purchase pursuant to the Offer Conditions set forth in Exhibit A. On and shall be liable on a direct and primary basis for the date of commencement of the Offer, Parent and performance by Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentsobligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Abt Building Products Corp), Merger Agreement (Louisiana Pacific Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurred, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Merger Sub shall, and Parent shall cause Merger Sub to, commence, commence (within the meaning of Rule 14d-2 under the under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "“Exchange Act"”), ) the Offer at as promptly as practicable following the Offer Price. date of this Agreement, and in any event within seven (7) Business Days following the date of this Agreement (or such other date as the Parties may agree in writing).
(b) The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, payment and pay for, for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject to the satisfaction or waiver (to the extent permitted by applicable Laws) of only those conditions set forth in Exhibit A Annex A, as such conditions may be modified in accordance with this Agreement (the "“Offer Conditions"”), and no other conditions.
(c) Parent and Merger Sub expressly reserve the right (in their sole discretion) (any of which may be waived x) to waive, in whole or in part part, any Offer Condition (to the extent permitted by Parent and Sub in their sole discretionapplicable Law), except as expressly provided or (y) to increase the amount of cash constituting the Offer Price or to make any other changes in the Offer Conditions) terms and to the rights conditions of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for consistent with the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach terms of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash; provided, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except thathowever, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce the number of Shares subject sought to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Price or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) add to the Offer Conditions or modify or change any Offer Condition in any manner adverse to holders of Shares or that makes the Offer Conditions more difficult to satisfy, (other than adding consideration); v) except as otherwise provided in this Section 1.1, extend the Expiration Time of the Offer, or (vi) amend otherwise amend, modify or supplement any of the other material terms of the Offer in a any manner adverse to the holders of Shares. Notwithstanding Merger Sub shall not terminate the foregoing, Sub may, Offer prior to any scheduled Expiration Time without the prior written consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of Company. If this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate Agreement is terminated pursuant to Rule 14d-11 of the Exchange ActSection 8.1, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause it Merger Sub to, promptly (and in any event within twenty four (24) hours following such termination) terminate the Offer and not acquire any Shares pursuant thereto unless such acquisition of Shares and continuation of the Offer would be permitted under the Confidentiality Agreement; provided that neither Parent nor Merger Sub shall change, modify or waive the Minimum Condition. If the Offer is terminated by Merger Sub prior to the acceptance for payment and payment for Shares in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(d) The initial expiration date and time of the Offer shall be midnight, New York time, at the end of the day that is twenty (20) Business Days (for the purposes of this Section 1.1(d) and Section 1.1(e), Business Days shall be calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) from (and including the day of) the commencement of the Offer (such initial expiration date and time, and any expiration date and time established pursuant to an extension of the Offer in accordance with this Agreement, an “Expiration Time”).
(e) If at any then-scheduled Expiration Time, any of the Offer Conditions is not satisfied or waived (to the extent permitted by applicable Law) by Merger Sub, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time for periods of up to five (5) Business Days per extension (or such longer period as the Parties may agree) until the date on which all of the Offer Conditions are satisfied or so waived and the Offer is consummated; provided, however, that if the sole then-unsatisfied condition is the Minimum Condition, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time for periods of up to five (5) Business Days per extension (or such longer period as the Parties may agree) for up to a total of an additional ten (10) Business Days following the date on which public announcement is made that the sole then-unsatisfied condition is the Minimum Condition if (x) the Company shall have requested in writing that Merger Sub so extend the Offer or (y) Merger Sub and Parent elect to extend the Offer. Notwithstanding any provision in this Agreement to the contrary, in no event shall Merger Sub be required to extend the Offer beyond the Outside Date. In addition, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Expiration Time for the minimum period required by the applicable rules, regulations, interpretations or positions of the United States Securities and Exchange Commission (the “SEC”) (or its staff), or rules of any securities exchange, in each case, as applicable to the Offer. In addition, Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, following the Acceptance Time, make available one or more “subsequent offering periods” in accordance with Rule 14d-11 under the Exchange Act (each, a “Subsequent Offering Period”); provided, however, that Merger Sub shall not make available such a Subsequent Offering Period in the event that, prior to the commencement of any such Subsequent Offering Period, Parent and Merger Sub directly or indirectly own more than ninety percent (90%) of the outstanding Shares.
(f) Subject to the satisfaction of the Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for (subject to any withholding of tax pursuant to Section 3.4(h)) all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable (and in any event within three (3) Business Days) after the Expiration Time and in accordance with applicable Law (the “Offer Closing” and the time and date on which Merger Sub accepts such Shares for payment, the “Acceptance Time”). Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any Shares that Merger Sub becomes obligated to accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless and shall cause Merger Sub to fulfill all of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferMerger Sub’s obligations under this Agreement.
(bg) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement tender offer statement on Schedule TO (together with all amendments, supplements or amendments and exhibits thereto, the "“Schedule TO"”) with the SEC with respect to the Offer, which shall contain or include as exhibits an exhibit or incorporate by reference offer to purchase (the “Offer to Purchase Purchase”) and a forms of the related letter of transmittal and form of summary advertisement (such the Schedule TO and the documents included therein pursuant Offer to which the Offer will be madePurchase, together with any all amendments, supplements or amendments and exhibits thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to holders of Shares (in each case as and to the extent required by applicable federal securities lawsthe Exchange Act), to be disseminated to the Company’s shareholders. The Company shall promptly furnish Parent and Merger Sub agree that all information concerning the Offer Documents Company and the Company Subsidiaries as shall comply in all material respects with be required by the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees to shall correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, such information becomes false or misleading in any material respectrespect or as otherwise required by Law, and Parent and Merger Sub further agree to shall take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Sharesthe Company’s shareholders, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities lawsLaws. The Unless the Company Board has effected a Company Change of Recommendation or in connection therewith, the Company and its counsel shall be given reasonable opportunity to review and comment upon on the Offer Documents (including any amendments thereto) prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub agree shall provide to provide the Company and its counsel (i) any comments Parentor communications, whether written or oral, that Parent or Merger Sub (or their counsel counsel) may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments or communications and (ii) unless the Company Board has effected a Company Change of Recommendation or in connection therewith, a reasonable opportunity to participate in the response to such comments or communications and to cooperate with the Company and its counsel in responding to any provide comments on such commentsresponse.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Chiquita Brands International Inc), Merger Agreement (Cavendish Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 10.01 and none 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 events conditions set forth in Exhibit A shall have occurredAnnex I hereto (the “Offer Conditions”) (other than the conditions set forth in clause (i) and subclause (D) of clause (ii)), as promptly as practicable but in no event earlier than fifteen (15) Business Days following the date of this Agreement and no later than seven (7) business days following the public announcement by Parent and the Company of the Offer and MergerSeptember 1, Sub 2016, Merger Subsidiary shall, and Parent shall cause Sub it to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), 1900 Xxx) the Offer at the Offer Price, payable net to the holders in cash, without interest, subject to any deduction or withholding of Taxes required by Applicable Law. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions time scheduled for payment for Shares accepted for payment pursuant to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Offer is referred to in this Agreement as the “Offer Closing”, and the date on which Merger Subsidiary commences (within the meaning of Rule 14d-2 under the 1900 Xxx) the Offer is referred to as the “Offer Commencement Date”.
(b) Parent and Sub Merger Subsidiary expressly reserve the right, right to waive (in their sole discretion, whole or in part) any of the Offer Conditions at any time and to modify make any change in the terms of or conditions to the Offer, except including raising the Offer Price; provided that, without the prior written consent of the Company, Sub shall not neither Parent nor Merger Subsidiary shall:
(i) reduce waive or change the number of Shares subject to the Offer, Minimum Condition (as defined in Annex I);
(ii) reduce decrease the Offer Price, ;
(iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable to be paid in the Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the expiration date of the Offer (other than adding consideration)except as otherwise provided herein; or or
(vi) impose additional Offer Conditions or otherwise amend or modify any other material of the Offer Conditions or terms of the Offer in a manner that is adverse to the holders beneficial owners of Shares. Notwithstanding .
(c) Unless extended as provided in this Agreement, the foregoing, Sub may, without Offer shall initially be scheduled to expire on the consent of date that is twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Company 1900 Xxx) after the Offer Commencement Date (i) extend the Offer, if at the scheduled or extended such initial expiration date of the Offer any or such subsequent date to which the expiration of the Offer Conditions is extended in accordance with the terms of this Agreement, the “Expiration Date”); provided that, unless otherwise agreed in writing by the Parties, such initial Expiration Date shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, a date that notwithstanding is within five (5) Business Days after the date of a regularly scheduled payroll run of the Company. Notwithstanding anything herein to the contrarycontrary contained in this Agreement, if any of the conditions but subject to the Offer are not satisfied or waived on any scheduled expiration date of the Offerparties’ respective termination rights under Article 7, (i) Merger Subsidiary shall, and Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; providedcause it to, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof or Nasdaq applicable to the Offer; (iii) extend the Offer or for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and required by Applicable Law, (ii) if, as of this sentence if there shall the then-scheduled Expiration Date, any Offer Condition is not have satisfied and has not been tendered a sufficient number of Shares to enable waived, then, at the Merger to be effected without a meeting request of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub Merger Subsidiary shall, and Parent shall cause it to, accept extend the Offer for paymentone (1) or more periods of up to ten (10) Business Days per extension to permit such Offer Condition to be satisfied or waived and (iii) if, as promptly as permitted under applicable securities lawsof the then-scheduled Expiration Date, any Offer Condition is not satisfied and pay for has not been waived, Parent may, in its sole discretion (after giving effect to and without the consent of the Company or any required withholding taxother Person), as promptly as practicable extend the Offer (up to the End Date but not thereafter) on one or more occasions, for an additional period of up to ten (10) Business Days per extension, to permit such Offer Condition to be satisfied; provided that, unless otherwise agreed in writing by the Parties, no such extended Expiration Date shall be a date that is within five (5) Business Days after the date on which Sub first accepts shares of a regularly scheduled payroll run of the Company. Notwithstanding anything to the contrary in this Section 2.01(c), in no event shall Merger Subsidiary be required or permitted to extend the Offer beyond the End Date. The Offer may be terminated prior to its then-scheduled Expiration Date, but only if this Agreement is validly terminated in accordance with Article 10.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver by Merger Subsidiary or Parent of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, promptly after the expiration of the Offer, accept for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”). The obligation of Merger Subsidiary to accept for payment Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). Promptly after the Acceptance Time, Merger Subsidiary shall pay the Offer Price for such Shares.
(be) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to On the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferCommencement Date, Parent and Sub Merger Subsidiary shall (i) file or cause to be filed with the SEC a Tender Offer Statement tender offer statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that shall include the summary term sheet required thereby and, as exhibits, the Offer, which shall contain as an exhibit or incorporate by reference the Offer to Purchase and a related form of letter of transmittal and transmittal, a form of summary advertisement (such and any schedule or form required to be filed pursuant to the Instructions to Schedule TO (collectively, and the documents included therein pursuant to which the Offer will be made, together with any amendments or supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to holders be disseminated to beneficial owners of Shares as and to the extent required by applicable federal securities lawsApplicable Law (including the 1934 Act). The Offer shall be conducted in compliance with Applicable Law (including the 1934 Act).
(f) Parent and Sub agree that Merger Subsidiary shall cause the Offer Documents shall to (i) comply in all material respects with the Exchange applicable requirements of the 1934 Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall (ii) not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, except that however, no covenant is made by Parent or Sub Merger Subsidiary with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Parent and Merger Subsidiary shall cause the information supplied by Parent and its Affiliates specifically for inclusion in the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) at the time the Schedule 14D-9 is filed with the SEC not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall promptly furnish to Merger Subsidiary and Parent in writing all information concerning the Company and its stockholders that may be required by Applicable Law to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by Section 2.01(e) or this Section 2.01(f). The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC, and Merger Subsidiary and Parent shall give reasonable and good faith consideration to any comments made by Company and its counsel. Each of Parent, Sub Merger Subsidiary and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and respect or as otherwise required by Applicable Law. Parent and Sub Merger Subsidiary further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected (if applicable) to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawslaws (including the 1934 Act). The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the other Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or other Offer Documents promptly after the receipt of such those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to cooperate 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 material discussions or meetings with the Company SEC.
(g) Subject in all respects to the other terms and its counsel in responding conditions of this Agreement and the Offer Conditions, Parent shall cause to be provided to Merger Subsidiary on a timely basis all of the funds necessary to purchase any such commentsShares that Merger Subsidiary becomes obligated to purchase pursuant to the Offer, and shall cause Merger Subsidiary to perform, on a timely basis, all of Merger Subsidiary’s obligations under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Sizmek Inc.), Merger Agreement (Sizmek Inc.)
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable but in no event later than seven (7) five business days following after the date of the public announcement by Parent and the Company of the Offer and Mergerthis Agreement, Sub shall, and Parent shall cause Sub to, commence, within commence the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent to cause Sub to, consummate commence 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 Parent and Sub in their sole its reasonable discretion, except that Sub shall not waive the Minimum Condition (as expressly provided defined in Exhibit A) without the Offer Conditionsconsent of the Company) and to the rights of Parent terms and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve reserves the right, in their sole discretion, right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions amend or add to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Conditions, (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; Offer, (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company Company, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; Offer and (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clauses clause (i) and or (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereofsentence. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Sub shall, and Parent shall cause it Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all supplements or amendments thereto, the "Schedule TO14D-1") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase purchase and a related letter of transmittal and summary advertisement (such Schedule TO 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"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholdersshareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders shareholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees agree promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, 14D-1 as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Sharesthe Company's shareholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders shareholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (International Business Machines Corp), Merger Agreement (Software Artistry Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 10.1 and none no event shall have occurred and no circumstance shall exist which would result in a failure to satisfy any of the events conditions set forth in Exhibit Annex A hereto (as they may be amended in accordance with this Agreement, the “Offer Conditions”), Merger Sub shall have occurred, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shallcommence, and Parent shall cause Merger Sub to, commence, to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at as promptly as practicable after February 4, 2008. The Offer Price of $10.6506 per share shall be net to each seller of shares of Common Stock in the Offer Pricein cash, subject to reduction for applicable amounts withheld pursuant to Section 2.1(f) below and reduction as contemplated by Section 8.2 below. The Company agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. The obligation of Merger Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, payment and to pay for, for any Shares shares of Common Stock validly 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 Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and . A share of Common Stock which has been properly withdrawn shall not be considered validly tendered pursuant to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for the sole benefit of Parent and Sub and Offer, but may be asserted by Parent and Sub regardless of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, re-tendered upon the terms and subject to the conditions of the Offer. Parent and Sub .
(b) Parent, on behalf of Merger Sub, expressly reserve reserves the right, in their its sole discretion, to waive, amend or modify any of the terms and conditions of the OfferOffer (including, except without limitation, the Offer Conditions) in a manner not inconsistent with this Agreement, provided, that, without the prior written consent of the Company, Parent shall not, and shall cause Merger Sub shall not to, (i) reduce the number of Shares subject to the Offer, (ii) reduce decrease the Offer Price, Price (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent except as permitted by this Agreement); , (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (vii) change the form of consideration payable in the Offer (other than by adding consideration), (iii) decrease or limit the number of shares of Common Stock sought to be purchased in the Offer, (iv) amend or waive satisfaction of the Minimum Condition; or (viv) amend any other material terms term or condition of the Offer in a any manner materially adverse to the holders of Sharesshares of Common Stock, or (vi) extend the expiration of the Offer except as provided in Section 2.1(d). Notwithstanding Merger Sub shall not, nor shall Parent cause or permit Merger Sub to, revoke, abandon or terminate the foregoingOffer except pursuant to Section 10.1 or impose additional conditions or requirements in addition to the Offer Conditions.
(c) On the date of commencement of the Offer, Parent and Merger Sub shall (i) file or cause to be filed with the SEC a combined Schedule 13E-3 and Tender Offer Statement on Schedule TO filed under cover of Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) and related offer to purchase, letter of transmittal and summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and including any supplements or amendments thereto, the “Offer Documents”) and (ii) cause the Offer Documents to be disseminated to the holders of shares of Common Stock as and to the extent required by applicable U.S. federal securities laws. The Company agrees to promptly furnish to Parent and Merger Sub in writing, for inclusion in the Offer Documents, all information concerning the Company required by applicable law to be included in the Offer Documents or that may be reasonably requested by Parent or Merger Sub in connection with the preparation of the Offer Documents. Parent, Merger Sub and the Company each agrees 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 Merger Sub 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 disseminated to holders of shares of 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 the Offer Documents, and any amendments thereto, prior to the filing thereof with the SEC or dissemination thereof to the holders of shares of Common Stock. Parent and Merger Sub shall provide the Company and its counsel with a copy of any written comments with respect to the Offer Documents from the SEC or its staff, and shall consult with the Company regarding any telephonic notification of any oral comments with respect to the Offer Documents from the SEC or its staff, and shall consult with the Company and its counsel to the extent reasonably practicable under the circumstances before responding to any written comments with respect to the Offer Documents from the SEC or its staff, in each case promptly after the receipt thereof. In the event that Parent or Merger Sub receives any comments from the SEC or its staff with respect to the Offer Documents, each shall (i) respond promptly to such comments and (ii) take all other commercially reasonable actions necessary to resolve the issues raised therein.
(d) The Offer shall remain open until that date that is twenty (20) Business Days following (and including the day of) the commencement of the Offer or such later date to which the Offer may be extended in accordance with this paragraph (d) (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 may, without the consent of the Company Company, (i) extend and re-extend the OfferOffer on one or more occasions for one (1) or more periods of not more than ten (10) Business Days each, so long as the last such extension does not cause the Acceptance Date (hereinafter defined) to occur after April 30, 2008, if at the then-scheduled or extended expiration date of the Offer Expiration Date any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend and re-extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; and (iii) extend and re-extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in Business Days so long as the aggregate pursuant last such extension does not cause the Acceptance Date to occur after April 30, 2008, if the Minimum Condition has been satisfied but less than that number of shares of Common Stock have been validly tendered that, when added to the number of shares of Common Stock beneficially owned (within the meaning of Rule 14d-11 of 13d-3 under the Exchange Act) by Parent or any of its Affiliates or Subsidiaries, represents less than 90% of the outstanding shares of Common Stock (on a fully diluted basis). Merger Sub (or Parent on its behalf) may, in each case subject its sole discretion, elect to provide a subsequent offering period for the right of ParentOffer pursuant to, Sub or and on the Company terms required by, Rule 14d-11 promulgated under the Exchange Act. Nothing contained in this Section 2.1(d) shall be construed to terminate this Agreement pursuant affect any termination rights set forth in Article X hereof.
(e) Subject to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the OfferOffer and this Agreement and the satisfaction or waiver by Parent, on behalf of Merger Sub, of the Offer Conditions, Merger Sub shall, and Parent shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer promptly after the Expiration Date (the time and date of such acceptance for payment, the “Acceptance Date”). Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any and all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(bf) The Offer Merger Sub shall be made by means of an offer entitled to purchase (deduct and withhold from the "Offer to Purchase") subject consideration otherwise payable pursuant to the Offer Conditions set forth in Exhibit A. On the date to any holder of commencement shares of the Offer, Parent Common Stock such amounts as Merger Sub reasonably determines that it is required to deduct and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") withhold with respect to the Offermaking of such payment under the Code, which shall contain as an exhibit or incorporate by reference 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 maderules and regulations promulgated thereunder, together with or under any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by other applicable federal securities lawsTax law. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to To the extent that the Offer Documents shall be, or have become, false or misleading in any material respectamounts are so withheld by Merger Sub, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and paid over to the extent required by applicable federal securities laws. The Company and its counsel Governmental Authority, such deducted or withheld amounts shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination treated for all purposes of this Agreement as having been paid to the stockholders holder of the Company. Parent shares of Common Stock in respect of which such deduction and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentswithholding was made.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredSection 11.01, as promptly as practicable after the date of this Agreement, but in any event no event later than seven 10 Business Days (7) business days following the public announcement unless otherwise agreed by Parent and the Company) after the date of this Agreement (subject to the Company of the Offer having timely provided any information required to be provided by it pursuant to Section 2.01(g) and MergerSection 2.02(a)), Merger Sub shall, shall (and Parent shall cause Merger Sub to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions"0000 Xxx) (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Merger Sub first accepts shares for payment pursuant to commences (within the meaning of Rule 14d-2 under the 0000 Xxx) the Offer (such date, regardless of whether Parent and Sub elect is hereinafter referred to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of as the Exchange Act, the "Acceptance “Offer Commencement Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.”
(b) The Offer shall be made by means of an offer to purchase containing the terms set forth in this Agreement and the Offer Conditions (the "“Offer to Purchase"”). The obligations of Merger Sub to, 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 shall be subject only to the Minimum Condition, the Termination Condition and the other conditions set forth in Annex I (all of the offer conditions set forth in Annex I, collectively, the “Offer Conditions”). Merger Sub expressly reserves the right (in its sole discretion) at any time and from time to time to waive, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not: (i) waive or change the Minimum Condition or the Termination Condition or impose conditions to the Offer other than the Offer Conditions; (ii) decrease the Offer Price; (iii) change the form of consideration to be paid in the Offer; (iv) decrease the maximum number of Shares sought to be purchased in the Offer; (v) extend or otherwise change the Expiration Time other than as required or permitted by this Agreement; or (vi) otherwise amend, modify or supplement any of the Offer Conditions or other terms of the Offer in a manner materially adverse to the holders of the Shares. The Offer may not be terminated or withdrawn prior to the Expiration Time unless this Agreement is terminated in accordance with Section 11.01.
(c) The Offer initially shall be scheduled to expire at one minute after 11:59 p.m. (New York City time) on the date that is 20 business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the 0000 Xxx) from the Offer Commencement Date (unless otherwise agreed to in writing by Parent and the Company) (the “Initial Expiration Time”, and such time or such subsequent time to which the Initial Expiration Time of the Offer is extended in accordance with the terms of this Agreement, the “Expiration Time”).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 11.01:
(i) if, as of the then-scheduled Expiration Time, any Offer Condition (other than the Minimum Condition) has not been satisfied or, to the extent waivable by Merger Sub or Parent, waived by Merger Sub or Parent, Merger Sub may in its sole discretion (and, if requested by the Company, shall, and Parent shall cause Merger Sub to) extend the Offer on one or more occasions for an additional period of up to ten (10) business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the 0000 Xxx) (or such longer period as Parent and the Company may agree) per extension, to permit such Offer Condition to be satisfied;
(ii) Merger Sub shall extend the Offer from time to time for any period required by any applicable Law, any interpretation or position of the SEC or the staff thereof, or the rules and regulations of Nasdaq applicable to the Offer; and
(iii) if, as of the then-scheduled Expiration Time, all of the Offer Conditions have been satisfied or, to the extent waivable by Merger Sub or Parent, waived by Merger Sub or Parent, except that the Minimum Condition has not been satisfied, Merger Sub may (and, if requested by the Company, shall, and Parent shall cause Merger Sub to) extend the Offer on one or more occasions for an additional period of up to ten (10) business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the 0000 Xxx) (or such longer period as Parent and the Company may agree) per extension; provided that Merger Sub shall not be required to extend the Offer pursuant to this clause (iii) beyond the earlier of (A) one minute after 11:59 p.m. (New York City time) on the date that is 20 business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the 0000 Xxx) after the first date on which all of the Offer Conditions (other than the Minimum Condition) have been satisfied and (B) the End Date; provided that, notwithstanding the foregoing clauses (i), (ii) and (iii), in no event shall Merger Sub be permitted without the prior written consent of the Company or required to extend the Offer beyond the earlier to occur of (x) the termination of this Agreement in accordance with Section 11.01 and (y) the End Date.
(e) If this Agreement is terminated in accordance with Section 11.01, Merger Sub shall terminate the Offer and shall not acquire any Shares 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 promptly return (and cause any depository acting on behalf of Merger Sub to return) in accordance with applicable Law all tendered Shares to the registered holders thereof.
(f) On the terms and subject to the Offer Conditions conditions set forth in Exhibit A. this Agreement and to the satisfaction, or (to the extent waivable by Parent or Merger Sub) waiver by Parent or Merger Sub, of the Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) (i) promptly after the Expiration Time, irrevocably accept for payment all Shares tendered (and not validly withdrawn) pursuant to the Offer (the time of such acceptance, the “Acceptance Time”) and (ii) promptly after the Acceptance Time, pay for such Shares. The Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the respective seller in cash, without interest, on the terms and subject to the conditions set forth in this Agreement. Without limiting the generality of Section 8.01, Parent shall cause to be provided to Merger Sub, or otherwise cause to be delivered, all of the funds necessary to purchase any and all Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) On the date of commencement of the OfferOffer Commencement Date, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "Schedule TO"“Offer Documents”) with respect to the Offer, which that shall contain as an exhibit or incorporate by reference the Offer to Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which ii) cause the Offer will be made, together with any supplements or amendments thereto, the "to Purchase and other appropriate Offer Documents"), and Parent and Sub shall cause Documents to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities lawsthe 1934 Act. The Company will promptly furnish to Parent and Merger Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given information relating to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact Company required by the 1934 Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Parent will promptly furnish to the Company the information relating to Parent or Merger Sub required by the 1934 Act to be set forth in the Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”). Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided by it or any of its Affiliates for use in the Offer Documents if and to the extent that the Offer Documents such information shall have become (or shall have become known to be, or have become, ) false or misleading in any material respect, and respect or as otherwise required by applicable Law. Parent and Merger Sub further agree to shall take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be promptly filed with the SEC and the other appropriate Offer Documents, Documents as so corrected, corrected to be promptly disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company1934 Act. Parent and Merger Sub agree to shall provide the Company and its counsel with any written comments or other written communications (and a summary of all substantive oral comments or communications) that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments or communications. 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 to cooperate with Merger Sub shall provide the Company and its counsel in responding a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any such comments.
(h) At or prior to the Acceptance Time, Parent shall duly authorize, execute and deliver, and shall ensure that the Rights Agent duly authorizes, executes and delivers, the CVR Agreement.
Appears in 1 contract
Samples: Merger Agreement (Zogenix, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 8.01 hereof and none of provided further that the events set forth Company is prepared (in Exhibit A shall have occurredaccordance with Section 1.02(c)) to file the Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable but after the Agreement Date (and in any event, subject to the Company being prepared to file the Schedule 14D-9, no event later than seven ten (710) business days following Business Days after the date of initial public announcement by Parent and the Company of the Offer and Mergerthis Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence, commence (within the meaning of Rule 14d-2 under of the Securities Exchange Act of 1934, as amended (together with including the rules and regulations promulgated thereunder, the "Exchange Act")), the Offer to purchase any and all of the outstanding Shares at the Offer Price. The obligation of Merger Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and payment or pay for, for any Shares validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to (i) the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub condition that constitutes a breach of this Agreement). The initial expiration date of the Offer there shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller validly tendered in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify accordance with the terms of the Offer, except that, without prior to the consent scheduled expiration of the CompanyOffer (as it may be extended hereunder) and not properly withdrawn, Sub shall not (i) reduce the a number of Shares subject that, together with the Shares then directly or indirectly owned by Parent, represents at least a majority of all Fully Diluted Shares immediately prior to the Share Acceptance Time (the "Minimum Condition") and (ii) the conditions set forth in Annex II and no other conditions (together with the Minimum Condition, the "Offer Conditions"). Merger Sub, or Parent on behalf of Merger Sub, expressly reserves the right to waive, in its sole discretion, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing (which approval may be granted or withheld by the Company in its sole discretion), (A) the Minimum Condition may not be waived or amended, (B) no change may be made that changes the form of consideration to be paid pursuant to the Offer, (ii) reduce decreases the Offer PricePrice or the number of Company Shares sought in the Offer, (iii) impose any material imposes conditions to the Offer other than the Offer Conditions in addition to those set forth in Annex II, or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); otherwise amends or (vi) amend any other material terms of modifies the Offer in a any manner adverse to the holders of Shares, and (C) the Offer may not be extended except as set forth in this Section 1.01. 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 (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, the "Initial Expiration Date," and such time, or such subsequent time to which the expiration of the Offer is extended in accordance with the terms of this Agreement, the "Expiration Date"). Notwithstanding anything in this Agreement to the foregoingcontrary, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub (i) may, in its sole discretion, without the consent of the Company (i) Company, without limiting Parent's or Merger Sub's obligations under the following sentence, extend the OfferOffer on one or more occasions, in consecutive increments of up to ten (10) Business Days each, for any period up to and including the Outside Date if at the on any then-scheduled or extended expiration date of the Offer Expiration Date any of the Offer Conditions shall have not be been satisfied or waivedwaived in writing by Merger Sub (or Parent on its behalf), until such time as such conditions are Expiration Date on which all Offer Conditions shall then be satisfied or waived; providedor, however, that notwithstanding anything herein to the contraryextent permitted, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof The NASDAQ Stock Market applicable to the Offer; . Parent and Merger Sub agree that except to the extent otherwise agreed in writing by the Company prior to any then-scheduled Expiration Date, Merger Sub shall (iiiand Parent shall cause Merger Sub to) extend the Offer for any reason on one or more occasions for an aggregate period occasions, in consecutive increments of up to ten (10) Business Days each, up to and including the Outside Date, if on any then-scheduled Expiration Date any of the Offer Conditions have not more than 15 business days been satisfied or waived in writing by Merger Sub (or Parent on its behalf), until such Expiration Date on which all Offer Conditions shall then be satisfied or, to the extent permitted, waived; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the latest expiration date Outside Date or after the Company delivers, or is required to deliver, to Parent a notice in accordance with Section 5.02 with respect to a Takeover Proposal that would otherwise be permitted under clauses has been received at least ten (10) Business Days prior to the then-scheduled Expiration Date by the Company, its Subsidiaries, or any Representative of the Company, except to the extent that prior to the then-scheduled Expiration Date (i) and the Takeover Proposal giving rise to such notice has been withdrawn or the Company Board has rejected the Takeover Proposal giving rise to such notice, (ii) the Company Board has reconfirmed the Board Recommendation, and (iii) the withdrawal or rejection of this sentence if such Takeover Proposal or the reconfirmation of the Board Recommendation shall have been publicly announced by the Company. Following expiration of the Offer, Merger Sub (or Parent on its behalf) may, in its sole discretion, provide a subsequent offering period or one or more extensions thereof (a "Subsequent Offering Period") in accordance with Rule 14d-11 of the Exchange Act, if, as of the commencement of such period, there shall not have been validly tendered a sufficient (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), and not properly withdrawn pursuant to the Offer that number of Shares necessary to enable permit the Merger to be effected without a meeting of stockholders of the Company's stockholders Company in accordance with Section 253 253(a) of the General Corporation Law DGCL. Subject to the foregoing, including the requirements of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause it Merger Sub to, accept for paymentpayment and pay for, as promptly as permitted under applicable securities lawspracticable, and pay for (after giving effect to any required withholding tax), as promptly as practicable 1) after the date on which Sub first accepts shares for payment Expiration Date, all Shares validly tendered and not properly withdrawn pursuant to the Offer and/or (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"2) all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer.
(b) in any Subsequent Offering Period. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except Company agrees that no covenant is made by Parent or Sub with respect to information supplied Shares held by the Company or any of its stockholders specifically for inclusion or incorporation by reference in Subsidiaries will be tendered pursuant to the Offer. Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer Documents. Each to any holder of Parent, Shares such amounts as Merger Sub is required to deduct and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff withhold with respect to the Offer Documents promptly after the receipt making of such comments payment under the Code, or any provision of state, local or foreign Laws relating to Taxes. To the extent that amounts are so withheld and paid over to cooperate with the Company appropriate Tax authority by Merger Sub, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and its counsel in responding withholding were made by Merger Sub. Merger Sub shall not terminate the Offer prior to any such commentsscheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Section 8.01. If this Agreement is terminated pursuant to Section 8.01, Merger Sub shall, and Parent shall cause Merger Sub to, promptly, irrevocably and unconditionally terminate the Offer and shall not acquire the Shares pursuant thereto. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, and shall cause any 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.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredSection 8.01, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Merger Sub shall, and Parent shall cause Merger Sub to, commenceas promptly as practicable after the Agreement Date (and in any event no later than ten (10) Business Days after the date of the initial public announcement of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "“Exchange Act"”), ) the Offer to purchase any and all of the outstanding Shares at the Offer Price. .
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, payment and pay for, for any Shares tendered and not withdrawn pursuant to the Offer shall be is subject only to the satisfaction or waiver (as provided in Section 1.01(c) below) of the conditions set forth in Exhibit A Annex I (the "“Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement”). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) as soon as practicable after the Expiration Date (as defined in Section 1.01(e) below) and in compliance with applicable Law (as defined in Section 4.12(a) below). The acceptance for payment of Shares 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 or prior to the date of the Offer Closing funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and this Agreement.
(c) Parent and Merger Sub expressly reserve the right, in their sole discretion, right to modify the terms waive any of the Offer, except that, without Offer Conditions other than the Minimum Condition (which Minimum Condition may be waived by Parent and Merger Sub only with the prior written consent of the Company), and to increase the Offer Price or to make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided that, unless otherwise expressly provided in this Agreement or previously approved by the Company in writing, Parent and Merger Sub shall not not: (i) reduce the number of Shares subject to the Offer, (ii) reduce decrease the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Price or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions or amend any Offer Condition, (other than adding consideration); iv) waive or amend the Minimum Condition, (viv) amend any other material terms term of the Offer in a manner that is adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company or (ivi) extend the Offer, if at Expiration Date except as required or permitted by Section 1.01(e).
(d) On the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waivedis commenced, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which Tender Offer Statement shall contain as include an exhibit or incorporate by reference the Offer offer to Purchase and a related purchase, letter of transmittal and transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to the holders of Shares as and to the extent required by applicable federal securities lawsLaw. Merger Sub shall, and Parent and shall cause Merger Sub agree that to, cause the Offer Documents shall to comply as to form in all material respects with the Exchange Act requirements of applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Offer Documents, on the date first published, sent Company that may be required by applicable Law 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 is made reasonably requested by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference be set forth in the Offer Documents. Each of Parent, Sub and the Company parties agrees to promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any written comments (and shall orally describe 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 Offer Documents promptly after the receipt of such comments and comments. Prior to cooperate the filing of the Offer Documents (including any amendment or supplement thereto) with the Company and its counsel in SEC or dissemination thereof to the holders of Shares, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any comments provided by the Company. Parent and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(e) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 1.01(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Section 1.01(e) or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 1.01(e), the “Expiration Date”). Notwithstanding the foregoing, (i) if, on the then-effective Expiration Date, any of the Offer Conditions have not been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of not more than ten (10) Business Days (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree, in order to permit the satisfaction of the Offer Conditions (it being understood, for the avoidance of doubt, that the Offer shall not be extended pursuant to this clause (i) if all Offer Conditions have been satisfied or waived), and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or necessary to resolve any comments of the SEC or its staff applicable to the Offer or the Offer Documents; provided that (A) in the case of clauses (i) and (ii), Merger Sub shall not in any event be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the Outside Date (as defined in Section 8.01(c) below) and (B) in the case of clause (i), in the event that each Offer Condition (other than the Minimum Condition) shall have been satisfied or waived as of any then-effective Expiration Date and the Minimum Condition shall not have been satisfied as of such Expiration Date, then Merger Sub shall not in any event be required to extend the Offer pursuant to clause (i) beyond the date that is twenty (20) business days after such Expiration Date, but may in its sole discretion elect to do so, subject to Section 1.01(e)(A). Nothing in this Section 1.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Company, Parent or Merger Sub to terminate this Agreement pursuant to Section 8.01. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within one (1) Business Day of such termination) terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, prior to the acceptance for payment of Shares tendered in the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (ZS Pharma, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 8.1 and none of the events set forth in Exhibit A Annex I hereto shall have occurred, as promptly as practicable but in no event later than seven Purchaser shall commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange ActEXCHANGE ACT")), the Offer at as promptly as practicable following the Offer Pricedate hereof (but in no case later than ten (10) business days from the date hereof). The obligation obligations of Sub to, and of Parent Purchaser to cause Sub to, consummate the Offer and accept for payment, payment and to pay for, for any Shares validly tendered and not withdrawn pursuant prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Exhibit A (Annex I hereto. Subject to the "Offer Conditions") (any of which may be waived in whole prior satisfaction or in part waiver by Parent and Sub in their sole discretion, except as expressly provided in or Purchaser of the Offer Conditions) and to the rights conditions of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of Annex I hereto, Purchaser shall consummate the Offer shall be in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the twentieth (20th) business day following commencement acceptance of Shares for payment pursuant to the Offer. The Offer Price shall be net made by means of an offer to purchase (the seller in cash, without interest thereon, upon "OFFER TO PURCHASE") that contains the terms set forth in this Agreement, and subject to the conditions of the Offerset forth in Annex I hereto. Parent and Sub expressly reserve reserves the right, in their sole discretionright to waive any of such conditions, to modify increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Purchaser shall not, and Parent shall cause Purchaser not to, decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of Shares sought in the Offer, impose additional conditions to the Offer, extend the offer beyond the date that is twenty (20) business days after commencement of the Offer or the last extension (in accordance with this Section 1.1, if any, of the Offer, whichever is later (the "EXPIRATION DATE") except thatas set forth below, waive or change the Minimum Tender Condition (as defined in Annex I) or amend any other condition of the Offer in any manner adverse to the Company or the holders of the Shares, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Purchaser may, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions conditions to Purchaser's obligation to accept Shares for payment, shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the United States Securities and Exchange Commission (the "SEC") ), or the staff thereof thereof, applicable to the Offer; , or (iii) extend (or re-extend) the Offer for any reason on one or more occasions for an aggregate period of not more than 15 twenty (20) business days (taking into account all such extensions and re extensions), beyond the latest expiration applicable date that would otherwise be permitted under clauses clause (i) and or (ii) of this sentence if sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived, but there shall not have been validly tendered a sufficient and not withdrawn pursuant to the Offer that number of Shares necessary to enable permit the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of DelawareDGCL. In addition, as amended (the Purchaser may provide a "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days period" in the aggregate pursuant to accordance with Rule 14d-11 of 14d-l1 under the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub Purchaser shall file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act ("REGULATION M-A"), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements or amendments and exhibits thereto, the "Schedule SCHEDULE TO") with respect to ). The Schedule TO shall include the Offersummary term sheet required under Regulation M-A and, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"), . The Company hereby consents to the inclusion in the Offer Documents of the recommendation referred to in clause (iii) of Section 3.19 and the approval of the Board of Directors referred to in Section 3.19. Parent and Sub shall Purchaser agree to take all steps necessary to cause to be disseminated the Offer Documents to be filed with the SEC and disseminated to holders of Shares Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer DocumentsPurchaser, on the date first publishedone hand, sent or given to and the Company's stockholders, shall not contain any untrue statement of a material fact or omit on the other hand, agree to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respect, and respect or as otherwise required by law. Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing Schedule TO before it is filed with the SEC or dissemination to the stockholders of the CompanySEC. In addition, Parent and Sub Purchaser agree to provide the Company and its counsel with any comments comments, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the upon receipt of such comments comments, and any written or oral responses thereto.
(c) Parent shall provide or cause to cooperate with be provided to Purchaser upon expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to accept for payment, and pay for, any shares of Company Common Stock that are validly tendered and its counsel in responding not withdrawn pursuant to any such commentsthe Offer and that Purchaser is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Genzyme Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII its terms pursuant to Section 8 and none of the events set forth in paragraphs (a) through (f) of Exhibit A B shall have occurredoccurred and be existing, as promptly as reasonably practicable but after the date of this Agreement (and in no any event later than seven (7) business days following the public announcement by Parent and the Company within five Business Days of the Offer and Mergerdate hereof), Merger Sub shall, and Parent shall cause Merger Sub to, commence, commence the Offer within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, purchase and pay for, any for all Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (B. Merger Sub expressly reserves the "right to increase the Offer Conditions") (Price or to make any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided other changes in the terms and conditions of the Offer; provided, however, that without the prior written consent of the Company (such consent to be authorized by the Company’s Board of Directors), neither Parent nor Merger Sub shall make any change in the terms and conditions of the Offer Conditionsthat:
(i) and reduces the number of Shares subject to the rights Offer,
(ii) reduces the Offer Price to be paid pursuant to the Offer,
(iii) changes the Minimum Tender Condition (as defined in Exhibit B), adds to the conditions set forth in Exhibit B or modifies any condition set forth in Exhibit B in any manner adverse to the holders of Parent Shares,
(iv) changes the form of consideration payable in the Offer,
(v) extends the Offer in any manner other than pursuant to and Sub in accordance with the terms of Section 1.1(b) hereof, or
(vi) otherwise amends the Offer in any manner adverse to terminate this Agreement as provided in Section 8.1the holders of Shares. The conditions to the Offer set forth in Exhibit A B are for the sole benefit of Parent and Merger Sub and may be asserted waived by Parent and Sub regardless of the circumstances giving rise or Merger Sub, in whole or in part, at any time or from time to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the righttime, in their sole discretion, to modify other than the terms of Minimum Tender Condition, which may be waived by Parent and Merger Sub only with the Offer, except that, without the prior written consent of the Company.
(b) Unless extended in accordance with this Section 1.1(b), Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Priceshall expire at midnight, New York time, on the date that is 20 business days (iiifor this purpose calculated in accordance with Section 14d-1(g)(3) impose any material conditions to under the Exchange Act) after the date the Offer other than is commenced within the Offer Conditions or modify meaning of Rule 14d-2(a) under the Offer Conditions Exchange Act (other than to waive any Offer Conditions to the extent permitted by “Initial Expiration Date”, and, as it may be extended in accordance with this AgreementSection 1.1(b); (iv) except as provided in , the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration“Expiration Date”); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub maybut subject to the parties’ rights to terminate this Agreement pursuant to Section 8, without the consent of the Company (i) extend the Offer, if at the scheduled Initial Expiration Date or extended expiration date of the Offer any subsequent Expiration Date any of the Offer Conditions shall conditions set forth on Exhibit B are not be satisfied or and have not been waived, Merger Sub (A) shall extend the Offer for one period of 10 Business Days, and (B) may, in its sole discretion, extend the offer for one or more additional periods of 10 Business Days, in each case until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; and/or (ii) Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; (iii) , provided, that in no event shall Merger Sub be either required or permitted to extend the Offer for beyond November 13, 2006 (the “Outside Date”) or to waive any reason condition to the Offer.
(c) If, on one or more occasions for an aggregate period the Expiration Date, the Minimum Tender Condition has been satisfied and all of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not other conditions set forth in Exhibit B have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delawareirrevocably satisfied or waived, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon on the terms and subject to the conditions of the OfferOffer and this Agreement, as soon as practicable after the Expiration Date (and in any event within three Business Days), Merger Sub shall, and Parent shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") purchase all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer, and to pay the Offer Price payable in respect of each such Share net to the holder thereof in cash, subject to reduction only for any applicable federal back-up withholding or other Taxes payable by such holder (the date of such acceptance for payment being the “Acceptance Date”).
(bd) The Offer shall be made by means If, on the Expiration Date, the Minimum Tender Condition has been satisfied and all of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions other conditions set forth in Exhibit A. B have been irrevocably satisfied or waived but the number of Shares validly tendered and not withdrawn, when added together with all other Shares owned by Parent and its Subsidiaries, is less than 90% of the outstanding Shares, then Merger Sub may, but shall not be obligated to, provide, and the Offer Documents shall reserve the right to so provide, a “subsequent offering period” for the Offer in accordance with Rule 14d-11 under the Exchange Act of not less than three nor more than 20 Business Days immediately following its acceptance for payment and purchase of and payment for (as provided in Section 1.1(c)) Shares tendered in the Offer in the initial offer period. During such subsequent offering period, Merger Sub shall (and Parent shall cause Merger Sub to) immediately accept for payment all Shares as they are validly tendered pursuant to the Offer and to purchase and pay for such Shares as soon as practicable after they have been so tendered, in accordance with Rule 14d-11 under the Exchange Act.
(e) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, and cause to be disseminated to all of the Company’s stockholders, a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer an offer to Purchase purchase and a related letter of transmittal transmittal, a joint press release in accordance with Section 6.6 and a summary advertisement advertisement, if any, and all other ancillary offer documents (such Schedule TO and the documents included contained or incorporated by reference therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”), and . The Company shall promptly furnish to Parent and Merger Sub shall cause to in writing all information concerning the Company that may be disseminated required by applicable securities laws or reasonably requested by Parent and Merger Sub for inclusion in the Offer Documents so as to holders of Shares as and to the extent required by applicable federal securities laws. enable Parent and Merger Sub agree that the Offer Documents shall to comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances their obligations under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsSection 1.1(a). Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided by it or on its behalf for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Merger Sub further agree to 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 to be filed with the SEC and the other Offer Documents, Documents as so corrected, amended or supplemented to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsCompany’s stockholders. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents and any amendments or supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company’s stockholders. Parent and Merger Sub agree shall promptly provide to provide the Company and its counsel in writing any comments comments, whether written or oral, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents or any amendments or supplements thereto promptly after the receipt of such comments and to cooperate comments, shall consult with the Company and its counsel in prior to responding to any such commentscomments and shall provide the Company and its counsel with any written or oral responses to such comments promptly after giving same. In conducting the Offer, Parent and Merger Sub shall comply in all material respects with the provisions of the Exchange Act and any other applicable Legal Requirements.
(f) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer or the Merger, and shall be liable on a direct and primary basis for the performance by Merger Sub of its obligations under this Agreement. Prior to commencement of the Offer, Merger Sub shall designate, or shall cause to be designated, a bank or trust company reasonably acceptable to the Company to act as depositary and paying agent for the payment of the Offer Price for Shares validly tendered pursuant to the Offer (the “Depositary”), and, from time to time after the date the Offer is commenced, Merger Sub shall provide (or Parent shall provide on behalf of Merger Sub) to the Depositary funds in amounts and at the times necessary for the payment of the Offer Price for Shares validly tendered pursuant to the Offer, it being understood that any and all interest or income earned on funds made available to the Depositary pursuant to this Agreement shall be turned over to Parent.
(g) If this Agreement has been terminated pursuant to Section 8.1, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer without accepting any Shares for payment.
Appears in 1 contract
Samples: Merger Agreement (Summa Industries/)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate this Agreement shall not have been terminated in accordance with pursuant to Article VIII and none of the events set forth in Exhibit A shall have occurred8, as promptly as reasonably practicable after the date of this Agreement, but in no event later than seven fifteen (715) business days Business Days following the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub shall, Buyer shall (and Parent shall cause Sub Buyer to, commence, ) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, 0000 Xxx) the Offer. The date on which Buyer commences the Offer is referred to as amended the “Offer Commencement Date”.
(together b) In accordance with the rules terms and regulations thereunderconditions of this Agreement, and subject to the satisfaction or waiver by Buyer (to the extent such waiver is permitted by Applicable Law) of the conditions set forth in Annex I (collectively, the "Exchange Act"“Offer Conditions”), Buyer shall (and Parent shall cause Buyer to), at or as promptly as practicable following the Offer at Expiration Time (but in any event, within three (3) Business Days thereof), accept for payment (the Offer Price. The obligation time of Sub to, and of Parent to cause Sub to, consummate the Offer and accept acceptance for payment, and the “Acceptance Time”) and, at or as promptly as practicable following the Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the 0000 Xxx) thereafter), pay for, any for all Shares validly tendered and not properly withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions"“Closing” and, the date on which the Closing occurs, the “Closing Date”).
(c) (Buyer expressly reserves the right at any of which may be waived time to, at its sole discretion, waive, in whole or in part by Parent part, any of the Offer Conditions and Sub in their sole discretion, except as expressly provided to make any change in the Offer Conditions) and to the rights terms of Parent and Sub to terminate this Agreement as provided in Section 8.1. The or conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except ; provided that, without the prior written consent of the Company, Sub Buyer shall not not:
(i) reduce waive or change the number of Shares subject to the Offer, Minimum Condition;
(ii) reduce decrease the Offer Price, Consideration;
(iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable to be paid in the Offer Offer;
(other than adding consideration)iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time except as otherwise provided in this Agreement; or or
(vi) amend impose additional Offer Conditions or otherwise amend, modify or supplement any other material of the Offer Conditions or terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding .
(d) Unless extended as provided in this Agreement, the foregoingOffer shall expire at 12:00 midnight (New York City time) (i.e., Sub may, without one minute after 11:59 p.m. (New York City time)) on the consent date that is the later of the Company (i) extend twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Offer, if at 0000 Xxx) after the scheduled or extended expiration Offer Commencement Date and (ii) such date that is six (6) Business Days after the date of the EGM (such time, the “Initial Expiration Time” or such time and any subsequent time to which the expiration of the Offer is extended in accordance with the terms of this Agreement, the “Expiration Time”). Subject to the provisions of Article 8, if any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are is not satisfied or waived on by Buyer at the Initial Expiration Time or at any then-scheduled expiration date Expiration Time, Buyer shall (and Parent shall cause Buyer to) extend the Offer (the length of the Offersuch extension period to be determined by Parent or Buyer, Parent and Sub subject to clauses (i) through (iii) below) from time to time until such Offer Condition or Offer Conditions are satisfied or waived by Buyer; provided that (i) Buyer shall not be required to extend the Offer until beyond the End Date, (ii) no such condition or conditions are satisfied or waived unless such condition or conditions could individual extension of the Offer shall be for a period of more than ten (10) Business Days, and (iii) Buyer shall not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; at any time that Parent or Buyer is permitted to terminate this Agreement. Buyer shall (iiA) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof or the NYSE applicable to the Offer or as may be required by any other Governmental Authority, and (B) if the Marketing Period has not ended on the last Business Day prior to the expiration of the Offer, extend the Offer until the earliest to occur of (1) any Business Day before or during the Marketing Period as may be specified by Parent or Buyer on no less than two (2) Business Days’ prior notice to the Company, and (2) the first (1st) Business Day after the final day of the Marketing Period; (iii) provided, that Buyer shall not be required to extend the Offer to a date later than the End Date. Notwithstanding anything in this Agreement to the contrary, at the Initial Expiration Time or the then-scheduled Expiration Time, Buyer may extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty ten (2010) business days in Business Days from the aggregate pursuant to Rule 14d-11 of day the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereofMarketing Period will otherwise end. Subject to the foregoing and applicable law and upon the terms and subject to the conditions Following expiration of the Offer, Sub shallBuyer shall (and the Offer Documents shall so indicate) provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 promulgated under the 1934 Act of not less than ten (10) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) promulgated under the 1934 Act). The Offer may not be terminated prior to the Initial Expiration Time or the then-scheduled Expiration Time (as the same may be extended pursuant to this Section 2.01) unless this Agreement is validly terminated pursuant to Section 8.01. If this Agreement is validly terminated pursuant to Section 8.01, Buyer shall promptly (and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, in any event within twenty-four (24) hours following such termination) terminate the Offer and pay for (after giving effect not acquire any Shares pursuant thereto. If the Offer is terminated by Buyer prior to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares acceptance for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide payment for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly Shares tendered and not withdrawn pursuant to the Offer, Buyer shall promptly return, and shall cause any depositary acting on behalf of Buyer to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof. Nothing in this Section 2.01(d) shall affect any termination rights under Article 8.
(be) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to As soon as practicable on the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferCommencement Date, Parent and Sub Buyer shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that shall include the Offersummary term sheet required thereby and, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable United States federal securities lawslaws and any other Applicable Law. The Company shall promptly furnish to Parent and Sub agree that Buyer all information concerning the Offer Documents shall comply in all material respects with Company required by the Exchange 1934 Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Each of Parent, Sub Buyer and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that the Offer Documents such information shall have become (or shall have become known to be, or have become, ) false or misleading in any material respect, and . Parent and Sub further agree to take all steps necessary Buyer shall use their reasonable best efforts to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable United States federal securities lawslaws and any other Applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Buyer shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Buyer shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Buyer or their counsel may receive from time to time from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer Documents promptly after the receipt of such those comments or other communications and (B) a reasonable opportunity to participate in the response of Parent and Buyer to those comments and to cooperate provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Buyer or their counsel in any discussions or meetings with the Company and its counsel in responding SEC or other Governmental Authorities to any the extent such commentsparticipation is permitted by the SEC or other Governmental Authorities.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 11.01 and none of the events set forth in Exhibit A nothing shall have occurredoccurred that, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of had the Offer and Mergerbeen commenced, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), would give rise to a right to terminate the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to any of the conditions set forth in Exhibit A Annex I hereto (the "“Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax”), as promptly as practicable after the date hereof, and in no event later than five Business Days following the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the 0000 Xxx) the Offer on which Sub first accepts shares for payment pursuant behalf of Parent. The Offer shall be subject to the Offer Conditions. The date on which Merger Sub commences the Offer is referred to as the “Offer Commencement Date”.
(such date, regardless of whether Parent and a) Merger Sub elect expressly reserves the right to provide for one or more subsequent offering periods pursuant to Rule 14d-11 waive any of the Exchange Act, Offer Conditions and to make any change in the "Acceptance Date") all shares terms of Company Common Stock validly tendered and not withdrawn pursuant or conditions to the Offer; provided that, without the prior written consent of the Company, Merger Sub shall not:
(i) decrease the Offer Price other than in the manner required by Section 3.11;
(ii) change the form of consideration to be paid in the Offer;
(iii) decrease the number of Shares sought to be purchased in the Offer;
(iv) extend or otherwise change the expiration date of the Offer except as otherwise provided herein;
(v) increase or decrease the percentage of Shares required to meet the 80% Minimum Condition above or below 80%; or
(vi) otherwise amend, modify or supplement any of the Offer Conditions or other terms of the Offer in any manner that broadens such conditions or is otherwise adverse to the holders of the Shares. For the avoidance of doubt, the parties acknowledge and agree that, upon the mutual agreement of Merger Sub and the Company, Merger Sub may amend or waive the 80% Minimum Condition (except for any amendment having the effect of increasing the percentage of Shares required to meet the 80% Minimum Condition above 80%) and close the Offer even if insufficient Shares have been tendered to meet the 80% Minimum Condition.
(b) The Offer shall be made by means of an offer to purchase expire at 11:59 p.m. (New York City time) on the "Offer to Purchase") subject to the Offer Conditions date that is 20 Business Days (calculated as set forth in Exhibit A. On Rule 14d-1(g)(3) under the 0000 Xxx) after the Offer Commencement Date (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section (in which event the term “Expiration Date” shall mean the earliest time and date of commencement of that the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so correctedextended, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentsexpire).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall has not have been validly terminated in accordance with Article VIII and none Section 8 of the events set forth in Exhibit A shall have occurredthis Agreement, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Merger Sub shallwill, and Parent shall will cause 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"”)), the Offer at no later than the Offer Pricetenth (10th) business day following the date of this Agreement. The obligation obligations of Merger Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, payment and to pay for, for any Shares validly tendered and not withdrawn pursuant prior to the expiration of the Offer shall (as it may be extended in accordance with this Section 1.1(a)) will be subject only to the conditions set forth in Exhibit A Annex II (each such condition, an “Offer Condition”). Subject to the "Offer Conditions") (any of which may be waived in whole prior satisfaction or in part waiver by Parent and Merger Sub in their sole discretion, except as expressly provided in of the Offer Conditions) and to the rights of Parent and , Merger Sub to terminate this Agreement as provided in Section 8.1. The conditions to will consummate the Offer set forth in Exhibit A are accordance with the terms of such Offer, and accept for payment and pay for all Shares tendered and not withdrawn promptly following the sole benefit acceptance of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement 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. Parent and Merger Sub 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 to waive any of such conditions, to increase the Offer Price shall be net and to make any other changes in the Offer. Merger Sub will not, and Parent will cause Merger Sub not to, decrease the Offer Price, change the form of consideration payable in the Offer, 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 seller contrary contained in cashthis Agreement, without interest thereon, upon the terms and but subject to the conditions parties’ respective termination rights under Section 8:
(i) Merger Sub shall extend the Offer (A) for any extension period required by any rule, regulation or interpretation of the Offer. Parent U.S. Securities and Sub expressly reserve Exchange Commission (the right“SEC”), in its staff or the New York Stock Exchange (the “NYSE”), the Nasdaq Stock Market or their sole discretionrespective staffs, (B) for one or more extension periods of up to modify ten (10) business days per extension period (or a longer extension period approved by the terms Company), if, as of the Offerapplicable Expiration Date, except thateither (I) any waiting period (and any extensions thereof) or any approvals or clearances applicable to the Offer or the consummation of the Merger in accordance with the HSR Act have not expired, been terminated or been obtained, as applicable or (II) any of the Offer Conditions set forth in 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 applicable Expiration Date, (I) 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, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, may extend the Offer beyond if, as of any scheduled expiration date; 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 (v10) change business days per extension period (or a longer extension period as may be approved in advance by the form of consideration payable in the Offer (other than adding considerationCompany); or (vi) amend any other material terms of the Offer in a manner adverse , to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any permit all of the Offer Conditions shall not to be satisfied or waived, until such time as such conditions are satisfied or waivedsatisfied; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and in no event will Merger Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could beyond the valid termination of this Agreement in compliance with Section 8. Merger Sub will not reasonably be expected terminate the Offer prior to be satisfied by any scheduled Expiration Date without the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date prior written consent of the Offer beyond Company except in the Outside Date; (ii) extend event that this Agreement is terminated pursuant to Section 8. In addition, in 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; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of event this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders Agreement is terminated in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing of Section 8, Merger Sub will at such time irrevocably and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to unconditionally terminate the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Merger Sub shall will file with the SEC SEC, in accordance with Regulation M-A promulgated under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements or amendments and exhibits thereto, the "“Schedule TO") with respect to the Offer”). The Schedule TO will include, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a related form of letter of transmittal and summary advertisement and all information required by applicable Law (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments 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), and Parent and Merger Sub shall will take all actions necessary to cause to be disseminated the Offer Documents to be filed with the SEC and disseminated to holders of Shares the Shares, in each case, as and to the extent required by applicable federal securities lawsLaw. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer DocumentsParent, on the date first publishedone hand, sent or given to and 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 on the statements thereinother hand, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to will promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or such information will have become, become false or misleading in any material respect, and respect or as otherwise required by Law. Parent and Merger Sub further agree to will take all steps actions necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of the Shares, 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 upon on the Offer Documents prior to their filing Schedule TO and any amendment thereto before it is filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger Sub agree to will consider any such comments in good faith. In addition, Parent and Merger Sub will provide the Company and its counsel with any comments comments, whether written or oral, that 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 the receipt of such comments comments, and to cooperate with any written or oral responses thereto, and the Company will have the right to consult with Parent, Merger Sub and its their counsel in prior to responding to any such comments, either in written or oral form.
(c) Subject to the terms and conditions of this Agreement, unless extended 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 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 withdrawn in accordance with the Offer and that Merger Sub is obligated to accept for payment in accordance with the Offer and permitted to accept for payment in accordance with Law.
Appears in 1 contract
Samples: Merger Agreement (Invuity, Inc.)
The Offer. (a) Provided that If (i) this Agreement shall has not have been terminated in accordance with Article VIII and Section 8.1, (ii) none of the events conditions set forth in Exhibit Paragraphs (a) through (g) of Appendix A to this Agreement other than Paragraph (f) (with respect to the representations and warranties as of the Expiration Date) and Paragraph (g) (with respect to obligations to be performed or agreements or covenants to be performed or complied with after the commencement of the Offer) shall have occurred, as promptly as practicable but in no event later than seven occurred (7) business days following the public announcement unless waived by Parent in its sole discretion) and (iii) the Company Purchaser has received the Financing Letters then, within five Business Days following Purchaser's receipt of the Financing Letters (the "Offer and MergerDeadline"), Sub shall, and Parent Purchaser shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act")) the Offer. Subject to the Minimum Condition and subject to satisfaction or waiver of the other conditions set forth in Appendix A to this Agreement, the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, Purchaser shall consummate the Offer in accordance with its terms and to accept for payment, payment and pay for, any for Shares tendered and not withdrawn pursuant to the Offer promptly after Purchaser is legally permitted to do so under Applicable Law. The Offer shall be made by means of the Offer to Purchase and shall be subject only to the Minimum Condition and the other conditions set forth in Exhibit Appendix A (to this Agreement and shall reflect, as appropriate, the "Offer Conditions") (any of which may be waived other terms set forth in whole or this Agreement. Unless previously approved by the Company in part by Parent and Sub in their sole discretionwriting, except as expressly provided no change in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not made (i) reduce which decreases the number of Shares subject to price per Share payable in the Offer, (ii) reduce which changes the Offer Priceform of consideration to be paid in the Offer, (iii) impose any material which reduces the maximum number of Shares to be purchased in the Offer or the Minimum Condition, (iv) which imposes conditions to the Offer other than in addition to those set forth in Appendix A hereto or which modifies the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided conditions set forth in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer Appendix A in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (iv) extend the Offer, if at the scheduled or extended expiration date which amends any other term of the Offer any in a manner inconsistent with this Agreement and adverse to the holders of Shares, or (vi) which extends the expiration of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waivedbeyond thirty (30) Business Days following the initial scheduled Expiration Date (the initial scheduled Expiration Date being 20 Business Days following the commencement of the Offer); provided, however, that notwithstanding anything herein the foregoing, subject to Section 8.1, if the conditions set forth in Appendix A are not satisfied or, to the contraryextent permitted by this Agreement, if any waived, Purchaser will extend the Offer from time to time until the earlier of (i) the consummation of the Offer and (ii) thirty (30) Business Days in the aggregate following the initial Expiration Date of the Offer. In addition, Purchaser may increase the Offer Price, and the Offer may be extended to the extent required by Applicable Law in connection with such increase, in each case without the consent of the Company. If all of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of but the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable validly tendered but not withdrawn, together with the Merger to be effected without a meeting Shares held by Parent and Purchaser, if any, is less than ninety percent (90%) of the Company's stockholders in accordance with Section 253 then outstanding number of Shares, then upon the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance applicable Expiration Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub Purchaser shall, and Parent shall cause it Purchaser to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to "Subsequent Offering Periods" as such term is defined in and in accordance with Rule 14d-11 of under the Exchange Act, for an aggregate period not to exceed twenty (20) Business Days (for all such extensions) and Purchaser shall, and Parent shall cause Purchaser to, (i) give the "Acceptance Date"required notice of such extension, and (ii) immediately accept and promptly pay for all shares of Company Common Stock validly Shares tendered and not withdrawn pursuant prior to the Offerdate of such extension.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferOffer is commenced, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement tender offer statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer. The Schedule TO will include, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a related form of letter of transmittal and summary advertisement 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"), and c) Parent and Sub shall Purchaser will take all steps necessary to cause to be disseminated the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer DocumentsPurchaser, on the date first publishedone hand, sent or given to and 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 on the statements thereinother hand, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to will promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respect, and Parent and Sub further agree to . Purchaser will take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on each of the Offer Documents prior to their filing before such Offer Document is filed with the SEC or dissemination disseminated to the stockholders holders of the CompanyShares, as the case may be. Parent and Sub agree to Purchaser will provide the Company and its counsel in writing with any comments or other communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Documents, promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such commentsor other communications.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall has not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredpursuant to Section 7.01, as promptly as reasonably practicable but (and, in no event later than seven any event, within ten (710) business days following Business Days after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement), Sub shall, and Parent shall cause 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 thereunderAct, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation obligations of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be are subject to the conditions set forth in Exhibit A Annex II (as they may be amended in accordance with this Agreement, the "“Offer Conditions"”), and not any other conditions. The Offer shall initially expire at 11:59 p.m. (New York City time) on the date that is twenty (any 20) Business Days following the commencement of which may be waived the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act). Sub expressly reserves the right to waive, in whole or in part by Parent and Sub in their sole discretionpart, except as expressly provided in the any Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action Condition or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Sub shall not, and Parent shall not permit Sub to, (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions amend, modify or waive the Minimum Tender Condition, (iv) add to the Offer other than the Offer Conditions or amend, modify the Offer Conditions (other than to waive or supplement any Offer Conditions Condition in any manner adverse to the extent permitted by this Agreement); any holder of Company Common Stock, (ivv) except as expressly provided in the next sentencethis Section 1.01(a), terminate, extend or otherwise amend or modify the expiration date of the Offer beyond (or take any scheduled other action that would have the effect of extending the expiration date; date of the Offer), (vvi) change the form of consideration payable in the Offer Offer, (other than adding consideration); vii) otherwise amend, modify or (vi) amend supplement any other material of the terms of the Offer in a any manner adverse to any holder of Company Common Stock or (viii) provide any “subsequent offering period” within the holders meaning of SharesRule 14d-11 promulgated under the Exchange Act. Notwithstanding Subject to the foregoingparties’ rights to terminate this Agreement pursuant to Article VII and Sub’s right to waive any Offer Condition (other than the Minimum Tender Condition), Sub mayshall, without the consent of the Company and Parent shall cause Sub to, (i) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties may agree) each, if, at any then-scheduled expiration of the Offer, if at the scheduled or extended expiration date of the any Offer any of the Offer Conditions Condition shall not be have been satisfied or waived, until such time as each such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not condition shall have been satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; (iii) provided, however, that Sub shall not be required to, and without the Company’s prior written consent shall not, extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration Outside Date or the date that would otherwise be permitted under clauses (i) and (ii) of a valid termination of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders Agreement in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereofits terms. Subject to the foregoing and applicable law and upon Upon the terms and subject to the conditions of the OfferOffer and this Agreement, Sub shall, and Parent shall cause it Sub to, (x) immediately following any then-scheduled expiration of the Offer (if each Offer Condition shall have been satisfied or, if permitted by this Agreement, waived at such time) irrevocably accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect payment all Shares that Sub becomes obligated to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment purchase pursuant to the Offer (provided, that, for the avoidance of doubt, if the date of such dateexpiration is the Outside Date, regardless of whether Parent such acceptance shall occur on the Outside Date) (such acceptance, the “Offer Closing”) and Sub elect (y) following such acceptance, and no later than as soon as practicable on the Business Day that immediately follows the date on which the Offer expired, pay for all such Shares. The date and time at which the Offer Closing occurs is referred to provide for one or more subsequent offering periods in this Agreement as the “Acceptance Time.” The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in accordance with Section 7.01. If this Agreement is terminated pursuant to Rule 14d-11 Section 7.01, then Sub shall promptly (and, in any event, within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Exchange ActOffer. If the Offer is terminated or withdrawn by Sub, the "Acceptance Date") or this Agreement is terminated in accordance with Section 7.01, Sub shall promptly return, and shall cause any depository acting on behalf of Sub to return, all shares of Company Common Stock validly tendered and not withdrawn pursuant Shares to the Offerregistered holders thereof.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC SEC, 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 and supplements or amendments thereto, the "“Schedule TO") with respect to the Offer”), which shall contain include, as exhibits, an exhibit or incorporate by reference the Offer offer to Purchase purchase and a related letter of transmittal and transmittal, a summary advertisement and other ancillary Offer documents pursuant to which the Offer will be made (such Schedule TO and the documents included therein pursuant to which the Offer will be madeattached as exhibits thereto, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”), and cause the Offer Documents to be disseminated to the holders of Shares as, and to the extent, required by applicable federal securities Law. The Company shall promptly furnish to Parent and Sub all information concerning the Company that is required by the Exchange Act to be set forth in the Offer Documents or as otherwise reasonably requested by Parent. Prior to the filing of the Offer Documents (or any amendment or supplement thereto) or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, Parent and Sub shall provide the Company a reasonable opportunity to review and to propose comments on such document or response and Parent and Sub shall cause give reasonable consideration to be disseminated the Offer Documents to holders of Shares as and to the extent required any comments provided by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to shall promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Sub further agree to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TOOffer Documents, as so correctedamended or supplemented, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanyLaws. Parent and Sub agree shall promptly notify the Company upon the receipt of any comments from the SEC (or the staff of the SEC) or any request from the SEC (or the staff of the SEC) for amendments or supplements to the Offer Documents, and shall provide the Company and its counsel any comments with copies of all correspondence between Parent, Sub or and their counsel may receive from respective representatives, on the one hand, and the SEC (or its the staff of the SEC), on the other hand (and shall orally describe any oral comments). Parent and Sub shall use their respective reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC (or the staff of the SEC) with respect to the Offer Documents promptly after Documents.
(c) Parent shall provide, or cause to be provided to Sub, on a timely basis, all of the receipt funds necessary to purchase any Shares that Sub becomes obligated to purchase pursuant to the Offer; provided, that in no way shall this Section 1.01(c) reduce, offset or limit the obligations of Parent pursuant to Section 2.02(a).
(d) Notwithstanding anything in this Agreement to the contrary, if, from the date of this Agreement until the Effective Time, the number of outstanding Shares shall have been changed into a different number of shares or a different class by reason of any reclassification, stock split (including a reverse stock split), recapitalization, split-up, combination, exchange of shares, readjustment or other similar transaction, or a stock dividend or stock distribution thereon shall be declared with a record date within said period, the Offer Price shall be appropriately adjusted to provide the holders of Shares tendered in the Offer the same economic effect as contemplated by this Agreement prior to such comments and to cooperate with the Company and its counsel in responding to any such commentsevent.
Appears in 1 contract
Samples: Merger Agreement (Landauer Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 11.01 and none 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 events conditions set forth in Exhibit A shall have occurredAnnex I hereto (the “Offer Conditions”) (other than the conditions set forth in clause (i) and subclause (E) of clause (ii)), as promptly as practicable after the date hereof, but in no event later than seven (7) business days 10 Business Days following the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub Merger Subsidiary shall, and Parent shall cause Sub it to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act 0000 Xxx) the Offer , to purchase any and all outstanding shares of 1934Company Common Stock, including the associated preferred stock purchase rights (the “Company Rights”) issued pursuant to the Amended and Restated Rights Agreement dated as of May 9, 2007 between the Company and Computershare Investor Services, LLC, as amended rights agent (the “Company Rights Agreement”), for so long as such Company Rights are outstanding (each such share of Company Common Stock, together with the rules its associated Company Right, a “Share”, and regulations thereundercollectively, the "Exchange Act"), the Offer “Shares”) at a price per share equal to the Offer Price. The obligation Offer shall be subject to the Offer Conditions. The date on which Merger Subsidiary commences the Offer within the meaning of Sub Rule 14d-2 under the 1934 Act is referred to as the “Offer Commencement Date”.
(a) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, and promptly after the expiration of Parent to cause Sub tothe Offer, consummate the Offer and accept for payment, and pay for, any payment all Shares validly tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of time at which may be waived in whole or in part by Parent and Sub in their sole discretionShares are first accepted for payment under the Offer, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement“Acceptance Time”). The initial expiration date obligation of Merger Subsidiary to accept for payment Shares tendered pursuant to the Offer shall be subject only to the twentieth (20th) business day following commencement satisfaction or waiver of each of the OfferOffer Conditions (and shall not be subject to any other conditions). The Promptly after the Acceptance Time, Merger Subsidiary shall pay the Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. for such Shares.
(b) Parent and Sub Merger Subsidiary expressly reserve the right, right to waive any of the Offer Conditions and to make any change in their sole discretion, to modify the terms of or conditions to the Offer, except including raising the Offer Price; provided that, without the prior written consent of the Company, Sub shall not neither Parent nor Merger Subsidiary shall:
(i) reduce waive or change the number of Shares subject to the Offer, Minimum Condition (as defined in Annex I);
(ii) reduce decrease the Offer Price, ;
(iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable to be paid in the Offer;
(iv) decrease the number of shares of Company Common Stock sought to be purchased by Merger Subsidiary in the Offer;
(v) extend or otherwise change the expiration date of the Offer (other than adding consideration)except as otherwise provided herein; or or
(vi) amend otherwise amend, modify or supplement any other material of the Offer Conditions or terms of the Offer in a manner adverse that adversely affects, or would reasonably be expected to adversely affect, the holders of Shares.
(c) Unless extended as provided in this Agreement, the Offer shall expire on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 0000 Xxx) after the Offer Commencement Date. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the OfferMerger Subsidiary shall, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions and Parent shall not be satisfied or waivedcause it to, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof or Nasdaq applicable to the Offer; (iii) extend the Offer or for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) required by Applicable Law and (ii) if, on the initial expiration date or any subsequent date as of this sentence if there shall which the Offer is scheduled to expire, any Offer Condition is not have satisfied and has not been tendered a sufficient number of Shares to enable the waived, then Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub Subsidiary shall, and Parent shall cause it to, accept extend the Offer for paymentone or more periods ending no later than the End Date to permit such Offer Condition to be satisfied (provided, as promptly as permitted under applicable securities lawshowever, that, if all of the Offer Conditions other than the Minimum Tender Condition and pay for (after giving effect those that by their nature are to any required withholding tax)be satisfied at the expiration of the Offer have been satisfied or waived, as promptly as practicable Merger Subsidiary shall have the right, but not the obligation, to terminate the Offer 60 days after the date on which Sub first accepts shares for payment pursuant all of the Offer Conditions other than the Minimum Tender Condition and those that by their nature are to be satisfied at the expiration of the Offer have been satisfied or, to the Offer (such dateextent permissible, regardless have been waived by Merger Subsidiary). Following expiration of whether Parent and Sub elect to the Offer, Merger Subsidiary may, in its sole discretion, provide for one or more a subsequent offering periods pursuant to period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act1934 Act if, immediately following the "Acceptance Date") Time, Parent, Merger Subsidiary and their respective Subsidiaries and Affiliates beneficially own less than 90% of the Shares outstanding at that time (which Shares beneficially owned shall include Shares tendered in the Offer and not withdrawn). Merger Subsidiary shall, and Parent shall cause it to, immediately accept for payment and promptly pay for all shares of Company Common Stock Shares as they are validly tendered during such Subsequent Offering Period and not withdrawn pursuant in any event in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the 1934 Act. The Offer may be terminated prior to the Offerits expiration date (as such expiration date may be extended and re-extended in accordance with this Section 2.01(d)), but only if this Agreement is validly terminated in accordance with Article 11.
(bd) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to As soon as practicable on the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferCommencement Date, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that shall include the Offersummary term sheet required thereby and, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and Purchase, a related form of letter of transmittal and transmittal, a form of summary advertisement (such and any schedule or form required to be filed pursuant to the instructions to Schedule TO and the documents included therein pursuant to which the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”), and Parent and Sub shall cause ; (ii) timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be disseminated filed pursuant to Chapter 80B of the Minnesota Statutes (the “Minnesota Registration Statement”); and (iii) cause the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that Applicable Law (including the Offer Documents shall comply 0000 Xxx) and, by means of inclusion in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given shall disseminate to the Company's stockholders, holders of Shares the information set forth in the Minnesota Registration Statement to the extent required by Chapter 80B of the Minnesota Statutes. The Offer shall be conducted in compliance with the 1934 Act.
(e) Parent and Merger Subsidiary shall cause the Offer Documents to (i) comply with the applicable requirements of the 1934 Act and (ii) not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, except that however, no covenant is made by Parent or Sub Merger Subsidiary with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Parent and Merger Subsidiary shall cause the information supplied by Parent and its Affiliates specifically for inclusion in the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) or the information statement containing the information required by Section 14(f) of the 1934 Act and Rule 14(f)-1 promulgated thereunder (together with any amendments or supplements thereto, the “Information Statement”), at the respective times the Schedule 14D-9 or the Information Statement are filed with the SEC not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Sub Merger Subsidiary and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that the Offer Documents such information shall have become (or shall have become known to be, or have become, ) false or misleading in any material respect, and . Parent and Sub further agree to take all steps necessary to Merger Subsidiary shall cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsApplicable Law (including the 1934 Act). The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub Merger 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 of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC. Each of Parent and Merger Subsidiary shall respond as promptly as practicable to any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(f) Parent shall cause to be provided to Merger Subsidiary all of the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the Offer (including pursuant to any Subsequent Offering Period), and shall cause Merger Subsidiary to perform, on a timely basis, all of Merger Subsidiary’s obligations under this Agreement.
(g) Parent and Merger Subsidiary shall promptly after the receipt of such comments and to cooperate file with the Company and its counsel Commissioner of Commerce of the State of Minnesota all materials referred to in responding to any such commentsSection 80B.04 of the Minnesota Statutes.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredsection 8, as promptly as practicable after the date of this Agreement but in no event later more than seven (7) business days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub shall, Purchaser shall (and Parent shall cause Sub Purchaser to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act Act) the Offer.
(b) Subject to the terms and conditions of 1934this Agreement, as amended including the prior satisfaction of the Minimum Condition and the satisfaction or waiver of the other conditions set forth in Annex I (together with the rules and regulations thereundercollectively, the "Exchange Act"“Offer Conditions”), promptly after the later of (i) the earliest date as of which Purchaser is permitted under applicable Legal Requirements to accept for payment Shares tendered pursuant to the Offer at and (ii) the earliest date as of which the Minimum Condition has been satisfied and each of the other Offer Price. The obligation of Sub Conditions has been satisfied, or waived by Parent or Purchaser, Purchaser shall (and Parent shall cause Purchaser to, and of Parent to cause Sub to, ) consummate the Offer in accordance with its terms and accept for payment, and pay for, any Shares payment each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject to and promptly following the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number acceptance of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer pay the Offer Price (such date, regardless of whether Parent and Sub elect without interest but subject to provide any applicable Tax withholding) for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock each Share validly tendered and not properly withdrawn pursuant to the Offer.
(bc) The Offer shall be made by means of an offer to purchase (the "“Offer to Purchase"”) in accordance with the terms set forth in this Agreement and set forth in the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or reasonably could adversely affect, any holder of Shares, (F) change or waive the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Date (or any rescheduled Expiration Date), unless this Agreement is terminated in accordance with section 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City 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 (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(1) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied (other than conditions which by their nature are to be satisfied at the Offer Acceptance Time), or waived by Parent or Purchaser if permitted hereunder, then prior to the then scheduled expiration date, Purchaser shall extend the Offer for one or more periods of not more than ten business days each (or such other number of business days as the parties may agree and ending no later than the End Date), in order to permit the satisfaction of such conditions (subject to the right of Purchaser to waive any Offer Conditions Condition (other than the Minimum Condition) in accordance with this Agreement); and
(2) Purchaser shall extend the Offer for any period or periods required by applicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff, provided Purchaser shall extend the then current Expiration Date of the Offer to a period ending on the first business day on which the Offer can be accepted under applicable Legal Requirements. Notwithstanding the foregoing, in no event will Purchaser be required to extend the Offer beyond the End Date.
(f) Purchaser may (and the Offer Documents shall reserve the right of Purchaser to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 under the Exchange Act of not less than three nor more than 20 business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the Offer. Subject to the terms and conditions set forth in Exhibit A. On this Agreement and the Offer, Parent shall cause Purchaser to, and Purchaser shall, accept for payment and pay for all Shares validly tendered during such subsequent offering period as promptly as practicable after any such Shares are tendered during such subsequent offering period and in any event in compliance with Rule 14e-1(c) under the Exchange Act.
(g) In the event that this Agreement is terminated pursuant to Section 8.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within two business days of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares pursuant to the Offer and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all tendered Shares to the registered holders thereof.
(h) As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Sub Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that will include the Offersummary term sheet required thereby and, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a form of the related letter of transmittal and summary advertisement and (such Schedule TO and the documents included therein pursuant to which ii) cause the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), to Purchase and Parent and Sub shall cause related documents to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub Purchaser agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the “Offer Documents shall Documents”) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documentsrules and regulations thereunder and other applicable Legal Requirements. Each of Parent, Sub Purchaser and the Company agrees to promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Sub further agree agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall promptly furnish or otherwise make available to Parent and Purchaser or Parent’s legal counsel all information concerning the Acquired Corporations and the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.1(h). The Company and its counsel shall be given reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub Purchaser agree to provide the Company and its counsel with any comments Parent, Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments comments. Each of Parent and to cooperate with the Company and its counsel in responding Purchaser shall respond promptly to any such commentscomments of the SEC or its staff with respect to the Offer Documents or the Offer.
(i) Without limiting the generality of Section 9.12, Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under this Agreement. Parent and Purchaser shall, and each of Parent and Purchaser shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer.
Appears in 1 contract
The Offer. (a) Provided that Upon the terms and subject to the conditions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredagreement, as promptly as reasonably practicable following the date hereof, but in any event no event later than seven (7) business days following the tenth Business Day after the initial public announcement by Parent and of the execution of this agreement (subject to the Company of the Offer having timely provided any information required to be provided by it pursuant to section 1.1(i) and Mergersection 1.2(d)), Merger Sub shall, and Parent shall cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunderAct, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation obligations of Sub toMerger Sub, and of Parent to cause Sub toMerger Sub, consummate the Offer and to accept for payment, and pay for, any Shares shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this agreement) of the conditions set forth in Exhibit A annex I (as they may be amended in accordance with this agreement, the "“Offer Conditions"”).
(b) (Parent and Merger Sub reserve the right, to the extent permitted by Law, at any of which may be waived time, to waive, in whole or in part by Parent and Sub in their sole discretionpart, except as expressly provided in the any Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions Condition (other than as a result of any action the Minimum Condition) or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, Offer in any manner; except that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce the maximum number of Shares subject shares of Company Common Stock sought to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Price or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer (other than adding consideration); that are in addition to the Offer Conditions, or (vi) modify or amend any other material terms of the existing Offer Condition in a manner adverse to the holders of Sharesthe Company Common Stock, (v) except as otherwise required or permitted by section 1.1(d), extend or otherwise change the Expiration Time, (vi) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, (vii) increase the Offer Price, except following an Adverse Recommendation Change or the Company’s delivery to Parent of a notice of a Superior Proposal or in the event that Merger Sub is permitted to extend the Offer pursuant to section 1.1(d)(i)(2), or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding The Offer may not be terminated prior to its scheduled Expiration Time, unless this agreement is terminated in accordance with article VII.
(c) The Offer shall initially expire at midnight (New York City time) at the foregoing, Sub may, without the consent end of the Company day that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with section 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer (i) extend if on the Offerthen scheduled Expiration Time, if at the scheduled Minimum Condition has not been satisfied or extended expiration date of the Offer any of the other Offer Conditions shall has not be been satisfied or waivedwaived by Parent or Merger Sub if permitted hereunder, until for one or more occasions in consecutive increments of up to fifteen Business Days each, as determined by Merger Sub in its sole discretion, in order to permit the satisfaction of such time as such conditions are satisfied Offer Conditions (subject to the right of Parent or waivedMerger Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and (1) Merger Sub shall not be required to extend the Offer until such condition or to a date later than the Outside Date and (2) if all of the Offer Conditions (other than the Minimum Condition and other than those conditions that by their nature are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by at the Outside Date; providedExpiration Time, furtherbut subject to such conditions being able to be satisfied) have been satisfied or waived, that in no event Merger Sub shall Parent and Sub not be required to extend (but notwithstanding anything to the expiration date of the Offer beyond the Outside Date; (iicontrary in this agreement, in its sole discretion may) extend the Offer for any period to a date later than the earlier of (x) the Outside Date and (y) the date that is twenty Business Table of Contents Days after the date that all of the Offer Conditions (other than the Minimum Condition and other than those conditions that by their nature are to be satisfied at the Expiration Time, but subject to such conditions being able to be satisfied) have been satisfied or waived, and (ii) if required by any rule, regulation, interpretation or position of the Securities and Exchange Commission SEC, the staff thereof or the Nasdaq Global Select Market (the "SEC"“Nasdaq”) or the staff thereof applicable New York Stock Exchange (the “NYSE”), except that Merger Sub shall not be required to the Offer; (iii) extend the Offer for to a date later than the Outside Date. No extension pursuant to this section 1.1(d) shall be deemed to impair, limit, or otherwise restrict in any reason on one or more occasions for an aggregate period of not more than 15 business days beyond manner the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting rights of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company parties hereto to terminate this Agreement agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon of article VII.
(e) On the terms and subject to the conditions of this agreement, (i) at or as promptly as practicable following the OfferExpiration Time, Merger Sub shall, and Parent shall cause it Merger Sub to, irrevocably accept for payment (the time of acceptance for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the “Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"Time”) all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer, in each case without interest and subject to any applicable withholding of Taxes. 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.
(bf) The Offer Price payable in respect of each share of Company Common Stock shall be made by means of an offer to purchase (paid on the "Offer to Purchase") terms and subject to the conditions of this agreement. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) Unless this agreement is terminated pursuant to article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer Conditions set forth prior to any scheduled Expiration Time without the prior written consent of the Company. In the event this agreement is terminated pursuant to article VII, Merger Sub shall promptly following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer or this agreement is terminated in Exhibit A. accordance with this agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares of Company Common Stock to the tendering stockholders in accordance with applicable Law.
(h) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Company Common Stock occurring on or after the date of this agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Company Common Stock the same economic effect as contemplated by this agreement prior to such action.
(i) On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO") with respect to the Offer”), which shall contain as an exhibit or incorporate by reference the Offer an offer to Purchase purchase and a related letter of transmittal and summary advertisement 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 Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to the holders of Shares Company Common Stock as and to the extent required by applicable United States federal securities lawsLaws. The Company shall promptly furnish or otherwise make available to Parent and Sub agree or Parent’s legal counsel upon request all information concerning the Company that is required by the Exchange Act or other applicable Law to be set forth in the Offer Documents shall comply in and all material respects with other information concerning the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to Company that may 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 reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided supplied by it Table of Contents or on its behalf for use inclusion or incorporation by reference in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Merger Sub further agree to shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected, amended or supplemented to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all written correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the SEC, on the other hand. Unless there has been an Adverse Recommendation Change, prior to the filing of the Offer Documents with the SEC or 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, and Parent and Merger Sub shall give reasonable consideration to any such comments. Unless the Offer Documents prior to their filing has been terminated in accordance with the SEC terms of this agreement, if Parent or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel receives any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, then each shall use its commercially reasonable efforts to respond promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
Samples: Merger Agreement (Vmware, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events conditions set forth in Exhibit A clauses (b)(i), (ii), (iii), (iv)(A) and (iv)(B) of Annex I hereto shall have occurredbeen satisfied, as promptly as practicable but reasonably practicable, and in no any event later than seven (7) business days following the public announcement by Parent and the Company within ten Business Days of the Offer and Mergerdate of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with including the rules and regulations promulgated thereunder, the "“Exchange Act"”), ) the Offer at the Offer PriceOffer. The obligation obligations of Sub toMerger Sub, and of Parent to cause Sub toMerger Sub, consummate the Offer and to accept for payment, payment and pay for, for any Shares validly tendered (and not withdrawn validly withdrawn) pursuant to the Offer shall be subject to (i) the satisfaction of the Minimum Condition (as defined in Annex I hereto) and (ii) the satisfaction, or waiver by Merger Sub or Parent, of each of the other conditions set forth in Exhibit A Annex I hereto (together with the "Minimum Condition, the “Offer Conditions") (any of which may be waived in whole or in part by Parent ”), and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offerhereof. Parent and Merger Sub expressly reserve the right, in their sole discretion, to (A) increase the Offer Consideration, (B) waive any Offer Condition (other than the Minimum Condition), or (C) modify any of the other terms or conditions of the Offer, except that, without the prior written consent of the Company, Parent and Merger Sub shall not (i1) reduce the number amount of Shares subject the Cash Consideration or the amount of the Milestone Payment (provided, for the avoidance of doubt, that any increase in required withholding Tax due to changes in applicable Law shall not be considered a reduction to the OfferOffer Consideration), (ii) reduce the Offer Price, (iii2) impose any material conditions to the Offer other than Milestone Payment in addition to the Offer Conditions conditions set forth in the form of CVR Agreement (or modify any of the Offer Conditions (other than to waive any Offer Conditions conditions to the extent permitted by this Agreement); (iv) except as provided Milestone Payment set forth in the next sentenceCVR Agreement in a manner adverse to holders of CVRs in their capacity as such), extend the Offer beyond any scheduled expiration date; (v3) change the form of consideration payable in the Offer (other than by adding consideration); , (4) reduce the number of Shares subject to the Offer, (5) waive, amend or change the Minimum Condition, (vi6) amend any other material terms impose conditions to the Offer in addition to the Offer Conditions, (7) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (8) modify any Offer Condition set forth in this Agreement in a manner adverse to the holders of SharesShares (in their capacity as such).
(b) The Offer shall initially be scheduled to expire at one minute after 11:59 p.m. (New York City 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 (and including the day of) the commencement of the Offer (such expiration date and time, 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 so extended, the “Expiration Date”). Notwithstanding anything to the foregoingcontrary contained in this Agreement, Sub may, without but subject to the consent of the Company parties’ respective termination rights under Article VIII: (i) extend the OfferMerger Sub shall, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions and Parent shall not be satisfied or waivedcause Merger Sub to, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected from time to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer time for any period to the minimum extent required by any ruleLaw, regulation, or any interpretation or position of the Securities and Exchange Commission (the "“SEC") or ”), the staff thereof or the Nasdaq Stock Market LLC (“Nasdaq”) applicable to the Offer; (iiiii) if, as of the then-scheduled Expiration Date, any Offer Condition is not satisfied (unless such condition is waivable by Merger Sub or Parent and has been waived), Merger Sub may, in its discretion (and without the consent of the Company or any other Person), extend the Offer for any reason on one additional periods of between five and ten Business Days per extension (or more occasions for an aggregate such other period of not more than 15 business days beyond as the latest expiration date that would otherwise parties hereto may agree), to permit such Offer Condition to be permitted under clauses (i) satisfied; and (ii) iii), if, as of this sentence if there shall the then-scheduled Expiration Date, any Offer Condition is not have satisfied (unless such condition is waivable by Merger Sub or Parent and has been tendered a sufficient number of Shares to enable waived), at the Merger to be effected without a meeting written request of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause it Merger Sub to, extend the Offer for additional periods specified by the Company of between five and ten Business Days per extension (or such other period as the parties hereto may agree), to permit such Offer Condition to be satisfied; provided, that (1) if, as of any Expiration Date, all Offer Conditions, other than the Minimum Condition, have been satisfied or waived by Parent or Merger Sub in accordance with the terms of this Agreement, neither Parent nor Merger Sub shall be required to extend the Offer on more than three occasions, but may elect to do so with the Company’s prior written consent and (2) in no event shall Parent or Merger Sub (x) be required to extend the Offer beyond the earlier to occur of (i) the valid termination of this Agreement in accordance with Article VIII and (ii) March 29, 2024 (the “Outside Date”, and such earlier occurrence, the “Extension Deadline”) or (y) be permitted to extend the Offer beyond the Extension Deadline without the prior written consent of the Company. Nothing in this Section 1.1(b) shall be deemed to impair, limit or otherwise restrict in any manner the right of the parties hereto to terminate this Agreement pursuant to and in accordance with the terms of Article VIII.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of all of the Offer Conditions, Merger Sub will accept for paymentpayment (the time of such acceptance, as promptly as permitted under applicable securities laws, the “Acceptance Time”) and thereafter pay for (after giving effect all Shares validly tendered and not validly withdrawn pursuant to any required withholding tax), the Offer as promptly soon as practicable after the date on which Expiration Date, provided, that with respect to Shares validly tendered pursuant to guaranteed delivery procedures that have not yet been “received” (as such term is defined in Section 251(h)(6)(f) of the DGCL), Merger Sub first accepts shares shall be under no obligation to make any payment for payment such Shares pursuant to the Offer (unless and until such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferShares are so received.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated in accordance with Article VIII and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Exhibit A shall have occurredAnnex I, as promptly as practicable but after the date hereof (and in any event no event later than seven (7) business days following ten Business Days after the public announcement by Parent and the Company of the Offer and Mergerdate hereof), Sub Merger Subsidiary shall, and Parent shall cause Sub Merger Subsidiary to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 0000 Xxx) the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub condition that constitutes a breach of this Agreement). The initial expiration date of the Offer there shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller validly tendered in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify accordance with the terms of the Offer, except prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, without together with the consent Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Fully-Diluted Shares (the “Minimum Condition”) and to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the Companyconditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, Sub shall not (i) reduce the number Minimum Condition may not be waived, (ii) no change may be made that changes the form of Shares subject consideration to be paid pursuant to the Offer, (ii) reduce decreases the Offer PricePrice or the number of Company Shares sought in the Offer, (iii) impose any material imposes conditions to the Offer other than the Offer Conditions in addition to those set forth in Annex I, or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); otherwise amends or (vi) amend any other material terms of modifies the Offer in a any manner materially adverse to the holders of Company Shares, and (iii) the Offer may not be extended except as set forth in this Section 2.01(a). Notwithstanding Subject to the foregoingterms and conditions of this Agreement, Sub maythe Offer shall expire at midnight, without New York City time, on the consent date that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the 0000 Xxx) after the date that the Offer is commenced. Merger Subsidiary, at the request of the Company (i) Company, shall extend the OfferOffer (1) if, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waivedOffer, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are shall not have been satisfied or waived on waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions, (y) the reasonable determination by Parent that any scheduled expiration date of the Offer, Parent and Sub shall be required such condition to extend the Offer until is not capable of being satisfied on or prior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by Merger Subsidiary, and (z) the Outside End Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii2) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by Applicable Law. Following expiration of the Offer; (iii) extend the Offer for any reason on , Merger Subsidiary may, in its sole discretion, provide one or more occasions for an aggregate period subsequent offering periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) 1934 Act, if, as of this sentence if the commencement of each such period, there shall not have been validly tendered a sufficient and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period that number of Company Shares necessary to enable permit the Merger to be effected without a meeting of stockholders of the Company's stockholders , in accordance with Section 253 253(a) of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereofDelaware Law. Subject to the foregoing and applicable law foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Sub Merger Subsidiary shall, and Parent shall cause it Merger Subsidiary to, accept for paymentpayment and pay for, as promptly as permitted under applicable securities lawspracticable, and pay for all Company Shares (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"A) all shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferOffer after the final expiration of the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each Company Share 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, subject to reduction for any applicable withholding Taxes.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On As soon as practicable on the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that shall include the Offersummary term sheet required thereby and, which shall contain as an exhibit exhibits or incorporate incorporated by reference thereto, the Offer to Purchase and a related forms of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”), and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as Company Shares. The Company shall promptly furnish to Parent and to Merger Subsidiary in writing all information concerning the extent Company that may be required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent laws 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 is made reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically Merger Subsidiary for inclusion in the Schedule TO or incorporation by reference in the Offer Documents. Each of Parent, Sub Merger Subsidiary and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and . Parent and Sub further Merger Subsidiary agree to take all steps necessary to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger 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 the receipt of such those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to cooperate provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the Company and its counsel in responding to any such commentsSEC.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and MergerFebruary 25, 2002, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent to cause Sub to, consummate commence 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 the attached Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their its sole discretion, except that Sub shall not waive the Minimum Condition (as expressly provided defined in Exhibit A) without the Offer Conditionsconsent of the Company) and subject to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve reserves the right, in their sole discretion, right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions add to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); , (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; Offer, (v) change the form of consideration payable in the Offer (other than adding consideration); Offer, or (vi) otherwise amend any other material the terms and conditions of the Offer in a manner adverse to the holders stockholders of Sharesthe Company. Notwithstanding the foregoing, Sub may, without the consent of the Company Company, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; Offer and (iii) if all Offer Conditions are satisfied or waived but the number of Shares tendered pursuant to the Offer is less than 90% of the outstanding Shares, extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clauses clause (i) and or (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Actsentence, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. If the Offer Conditions are satisfied or waived (to the extent permitted herein) and Sub purchases Shares pursuant to the Offer, Sub may, in Sub's sole discretion, provide a "subsequent offering period" in accordance with Rule 14d-11 under the Exchange Act. Parent and Sub agree that if at any scheduled expiration date of the Offer, the Minimum Condition, the HSR Condition (as defined in Exhibit A) or either of the conditions set forth in paragraphs (e) or (f) of Exhibit A shall not have been satisfied, but at such scheduled expiration date all of the conditions set forth in paragraphs (a), (b), (c), (d) and (g) of Exhibit A shall then be satisfied, at the request of the Company (confirmed in writing), Sub shall extend the Offer from time to time (provided that Sub shall not be required to extend the Offer for more than 20 business days), subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof; provided, however, that Parent and Sub shall not be required to extend the Offer if any person or "group" (as defined in Section 13(d)(3) of the Exchange Act), other than Parent, Sub or their affiliates or any group of which any of them is a member, shall have acquired or announced (and not withdrawn) its intention to acquire beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 15% or more of the Shares. The initial expiration date of the Offer shall be 20 business days from and including the date of commencement of the Offer. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Sub shall, and Parent shall cause it Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer an offer to Purchase 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"), and Parent and Sub shall cause the Offer Documents to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to shall each promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Oratec Interventions Inc)
The Offer. (a) (i) Provided that this Agreement shall has not have been terminated in accordance with Article VIII pursuant to Section 7.01 and none of that the events set forth in Exhibit A Company shall have occurredcomplied with its obligations under this Section 1.01 and Section 1.02, as promptly as reasonably practicable but after the date hereof (and, in no event later than seven any event, within twenty (720) business days following Business Days after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement), Sub shall, and Parent shall cause 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 thereunderAct, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation obligations of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be are subject to the conditions set forth in Exhibit A Annex II (the "“Offer Conditions"”), and not any other conditions. Subject to Section 1.01(a)(ii), the Offer shall initially expire at 12:01a.m. (New York City time) on the date that is twenty-one (any 21) Business Days following the commencement of which may be waived the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act). Sub expressly reserves the right to waive, in whole or in part by Parent and Sub in their sole discretionpart, except as expressly provided in the any Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action Condition or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Sub shall not, and Parent shall not permit Sub to, (iA) reduce the number of Shares subject to the Offer, (iiB) reduce the Offer Price, (iiiC) impose any material conditions amend, modify or waive the Minimum Tender Condition, (D) add to the Offer other than the Offer Conditions or amend, modify or supplement any Offer Condition or other term of the Offer Conditions in any manner adverse to any holder of Company Common Stock, (other than to waive any Offer Conditions to the extent permitted by this Agreement); (ivE) except as expressly provided in the next sentenceSection 1.01(a)(ii), terminate, extend or otherwise amend or modify the expiration date of the Offer beyond (or take any scheduled other action that would have the effect of extending the expiration date; date of the Offer), (vF) change the form of consideration payable in the Offer (other than adding consideration); or (viG) amend provide any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more “subsequent offering periods period” within the meaning of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of promulgated under the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have --------- been terminated in accordance with pursuant to Article VIII IX and none of the events or conditions set forth in Exhibit A shall have occurredoccurred or be existing, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub Purchaser shall, and Parent shall cause Sub Purchaser to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act")), the Offer as promptly as practicable (but in no event later than the fifth business day from and including the date of the initial public announcement of the execution and delivery of this Agreement). Subject to the terms and conditions of the Offer, Purchaser shall accept for payment at the Offer PriceConsideration (and thereby purchase) and pay for 35,252,986 of the Shares that have been validly tendered and not withdrawn pursuant to the Offer (or such other number of shares representing 50.1% of Company's outstanding shares) prior to its expiration date, as it may be extended in accordance with the terms of the Offer (the "Acceptance Date"). The obligation of Sub to, and of Parent Purchaser to cause Sub to, consummate commence the Offer and accept for payment, purchase and pay for, any for Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A hereto including, without limitation, the Minimum Condition (as defined in Exhibit A). Purchaser expressly reserves the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided right to increase the price per Share payable in the Offer Conditions) and or to the rights of Parent and Sub to terminate this Agreement as provided make any other changes in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, that without the written consent of the Company, Sub Purchaser shall not (i) reduce or increase the number of Shares subject sought to be purchased pursuant to the Offer, (ii) reduce the Offer Priceprice per Share payable in the Offer, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable to be paid in the Offer, (iv) impose additional conditions to the Offer (other than adding consideration); or (vi) amend any other material terms term of the Offer in a any manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent Shares or (v) waive satisfaction of the Company (i) extend Minimum Condition, provided -------- that if the Offer, if at the scheduled or extended expiration date of price per Share payable in the Offer any is increased, the number of Shares of Parent Common Stock into which each Share is to be converted in the Offer Conditions shall not Forward Merger will be satisfied or waivedincreased to that number of Shares of Parent Common Shares having a market value, until based upon the closing price of such time as such conditions are satisfied or waived; providedShares on the New York Stock Exchange Composite Tape on the day the offer price per Share is increased, however, that notwithstanding anything herein to the contrary, if any of the conditions equal to the Offer are not satisfied or waived on any scheduled expiration Consideration.
(b) On the date of commencement of the Offer, Parent and Sub Purchaser shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of file with the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") 14D-1 with respect to the Offer, Offer (the "Schedule 14D-1") which shall will contain as an exhibit or incorporate by reference the Offer offer to Purchase purchase and a the form of the related letter of transmittal and summary advertisement (such the Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, 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 that the Offer Documents it shall be, or have become, become false or misleading in any material respect, respect and Parent and Sub further agree agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case case, as and to the extent required by applicable federal securities laws. The Parent and Purchaser agree to give Company and its counsel shall be given a reasonable opportunity to review and comment upon the any Offer Documents prior Document to their filing be filed with the SEC or dissemination prior to the stockholders of the Company. Parent making any such filing and Sub agree to provide the Company and its counsel with copies of any comments Parent, Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
(c) Parent and Purchaser agree that Purchaser shall not terminate or withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer shall not have been satisfied or earlier waived; provided that notwithstanding the foregoing, -------- Purchaser may, without the consent of Company, extend the Offer on one occasion following the time that all of the conditions to the Offer have been satisfied as of the scheduled expiration date of the Offer for a period not to exceed five business days. Notwithstanding anything to the contrary contained herein, (i) Purchaser may without the consent of Company, extend the Offer so as to comply with applicable rules and regulations of the SEC and (ii) so long as this Agreement has not been terminated in accordance with its terms, if at the scheduled expiration date of the Offer any of the conditions to Purchaser's obligation to accept for payment and pay for Shares shall not be satisfied or waived, Purchaser shall extend the Offer on one or more occasions.
Appears in 1 contract
The Offer. (a) Provided that Subject to the conditions of this Agreement shall not have been terminated and the proviso in accordance with Article VIII and none the first sentence of the events set forth in Exhibit A shall have occurredSection 1.02(b), as promptly as practicable (but in no event later than seven (710 business days) business days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "“Exchange Act"”), the Offer at Offer; provided that, if the Offer PriceCompany is unable to file the Schedule 14D-9 on the same day Parent is prepared to commence the Offer, then such 10-business day period shall be tolled until such time as the Company is prepared to file the Schedule 14D-9 with the SEC. The obligation obligations of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares shares of Company Common Stock 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 Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement”). The initial expiration date of the Offer shall be midnight, New York City time, on the twentieth (20th) 20th business day immediately following the commencement of the OfferOffer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). The Offer Price shall be net Subject to the seller in cashapplicable Law, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve reserves the rightright to, in their its sole discretion, waive, in whole or in part, any Offer Condition at any time prior to the expiration of the Offer or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material waive the Minimum Tender Condition or the conditions to the Offer other than set forth in lettered paragraph (b) of Exhibit A or numbered paragraph (i) of Exhibit A, (iv) add to the Offer Conditions conditions set forth in Exhibit A or modify the any Offer Conditions Condition (other than to waive any Offer Conditions as required by Law, the SEC or its Staff in a manner that is not adverse to the extent permitted by this Agreementholders of Company Common Stock); , (ivv) except as otherwise provided in the next sentencethis Section 1.01(a), extend the Offer beyond any scheduled expiration date; Offer, (vvi) change the form of consideration payable in the Offer (other than adding consideration); or (vivii) otherwise amend any other material terms of the Offer in a any manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled Common Stock or extended expiration date any manner that would result in any mandatory extension of the Offer (other than an increase in the Offer Price in response to an Acquisition Proposal). Notwithstanding anything in this Agreement to the contrary: (A) in the event that any of the Offer Conditions shall (including the Minimum Tender Condition or any of the other Offer Conditions set forth in Exhibit A) is not be satisfied or waived, until such time waived (if permitted hereunder) as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein of immediately prior to the contraryexpiration of the Offer (as it may be extended from time to time pursuant to and in accordance with this Section 1.01(a)), Sub shall, and Parent shall cause Sub to, extend the Offer for successive extension periods of up to 10 business days each (or (x) any longer period as may be mutually agreed by Parent and the Company or (y) any shorter period ending on the Termination Date, if any applicable) in order to permit the satisfaction of all of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer; and (B) Sub shall, and Parent and shall cause Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; providedto, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the New York Stock Exchange (the “NYSE”) or the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer; provided, however, that Sub shall not be required to (iiiand Parent shall not be required to cause Sub to) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Termination Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Sub shall, and Parent shall cause it Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferOffer that Sub becomes obligated to purchase pursuant to the Offer promptly (within the meaning of Section 14e-1(c) promulgated under the Exchange Act) after the expiration date of the Offer (as it may be extended from time to time pursuant to and in accordance with this Section 1.01(a)). Acceptance for payment of shares of Company Common Stock pursuant to the Offer is referred to in this Agreement as the “Offer Closing”, and the time at which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Time”. Sub expressly reserves the right to, in its sole discretion, provide for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents shall provide for such a reservation of right.
(b) The Offer Price shall be made by means adjusted appropriately to reflect the effect of an offer 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 purchase (Company Common Stock occurring on or after the "Offer to Purchase") subject date hereof and prior to the Offer Conditions set forth Closing in Exhibit A. accordance with the terms of this Agreement.
(c) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase 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"”), and . The Company shall furnish to Parent and Sub shall cause to be disseminated all information concerning the Offer Documents to holders of Shares as and to the extent Company required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Each of Parent, Sub and the Company agrees to shall promptly correct promptly any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Sub further agree to 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 to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable federal Federal securities lawsLaws, the SEC or its staff or the NYSE. The Parent and Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Unless the Board of Directors of the Company has effected an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Sub shall provide the Company a reasonable opportunity to review and comment upon on such Offer Documents or response (including the proposed final version thereof).
(d) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(e) Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer Documents prior to their filing with the SEC or dissemination any holder of shares of Company Common Stock such amounts as Sub is required to the stockholders of the Company. Parent deduct and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff withhold with respect to the Offer Documents promptly after the receipt making of such comments payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign tax Law. To the extent that amounts are so withheld and paid over to cooperate with the appropriate taxing authority by Sub, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and its counsel in responding to any such commentswithholding was made by Sub.
Appears in 1 contract
Samples: Merger Agreement (Komag Inc /De/)
The Offer. (a) 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 in Exhibit on Annex A hereto (the "Tender Offer Conditions") shall ------- ----------------------- have occurredoccurred and are continuing, as promptly as practicable but in no event later than seven (7) business days following on the public announcement by Parent and fifth Business Day after the Company date of the Offer and Merger, this Agreement Sub shall, and Parent shall cause 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 thereunder, the "Exchange Act"), ) the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, payment and to pay for, for any Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions Tender Offer Conditions. Subject to the proviso set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent immediately succeeding sentence and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights obligations of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to extend the Offer under certain circumstances as set forth in Exhibit A this Section 2.1(a), 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Tender Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the OfferConditions. Parent and Sub expressly reserve the right, in their sole discretion, right to modify the terms of the Offer, except thatincluding, without limitation, to extend the Offer beyond any scheduled expiration date or waive any Tender Offer Condition; provided, however, that neither Parent nor Sub -------- ------- shall, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares subject to be purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) impose any material additional conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Offer, (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer Offer, (other than adding consideration); or (viv) amend make any other material change to the terms of the Offer which is adverse in a any manner adverse to the holders of the Shares, (vi) extend the expiration date of the Offer beyond the twentieth (20/th/) Business Day after commencement of the Offer except (A) as required by applicable law, (B) as specified below in the sixth sentence of this Section 2.1(a) or (C) that if any condition to the Offer has not been satisfied or waived, Sub may, in its sole discretion, extend the expiration date of the Offer from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, unless Parent reasonably believes that such condition is not capable of being satisfied within such time, in which case Sub may extend the expiration date of the Offer for a period up to twenty (20) Business Days, but in no event later than the Termination Date, (vii) waive the Minimum Condition, (viii) waive the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A unless Sub shall pay for all Shares validly tendered and not withdrawn promptly following Sub's acceptance for payment of such Shares, or (ix) waive the Tender Offer Condition set forth in clause (iii)(f) of Annex A; provided, -------- however, that the Offer may be extended so as to comply with applicable rules ------- and regulations of the Commission or the staff thereof, unless the reason for such extension is the result of a material breach of this Agreement by Parent or Sub. Notwithstanding Assuming prior satisfaction or waiver of the foregoingTender Offer Conditions, Parent shall provide funds to Sub and Sub shall, as soon as legally permissible after the commencement thereof, accept for payment and pay for, in accordance with the terms of the Offer, the Shares which have been validly tendered and not withdrawn at or prior to the expiration of the Offer. If, on any expiration date of the Offer, more than 80% but less than 90% of the Shares have been validly tendered and not withdrawn, Sub may, without the consent of the Company (i) Company, extend the Offer, if at Offer for up to ten (10) Business Days in the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, aggregate notwithstanding that notwithstanding anything herein to the contrary, if any of the all conditions to the Offer are not satisfied have been satisfied, so long as Sub irrevocably waives the continued satisfaction of any of the Tender Offer Conditions, other than (x) the Minimum Condition, (y) the condition contained in clause (iii)(f) of Annex A, to the extent this Agreement is terminated pursuant to Section 8.1(a), 8.1(b)(i), 8.1(c), 8.1(d)(iii) or waived 8.1(d)(iv) or (z) any of the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A, but only to the extent that the failure of such condition is due to an event making it illegal to purchase Shares pursuant to the Offer. If, on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition would have expired due to the failure to satisfy (w) any of the Tender Offer Conditions set forth in clause (iii)(a), (iii)(b) or conditions are satisfied (iii)(c) of Annex A, (x) the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or waived unless such condition or conditions could not reasonably be expected to be satisfied by (y) the Outside Date; providedMinimum Condition, furtherParent shall, that in no event shall Parent and at the request of the Company, cause Sub be required to extend the expiration date of the Offer beyond (A) in the Outside Date; case of clause (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC"w) or the staff thereof applicable (x), from time to the Offer; (iii) extend the Offer time for any reason on one or more occasions for an aggregate period of periods not more exceeding, in each case, ten (10) Business Days, but in no event later than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) Termination Date and (iiB) in the case of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended clause (the "DGCL"y); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional not exceeding, in the aggregate, twenty (20) business days Business Days, but in no event later than the aggregate pursuant to Rule 14d-11 of the Exchange ActTermination Date, unless Parent, in each case subject case, reasonably believes at such time that such Tender Offer Condition is not capable of being satisfied. In addition, notwithstanding anything in this Section 2.1(a) to the right of Parentcontrary, Sub or if the Company to terminate this Agreement pursuant shall have affirmatively announced to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions stockholders of the OfferCompany a neutral position with respect to an Acquisition Proposal, Sub Parent shall, and Parent shall at the request of the Company, cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for Sub to extend the expiration date of the Offer to ten (after giving effect to any required withholding tax), as promptly as practicable 10) Business Days after the date on which Sub first accepts shares for payment pursuant to the Offer (of initial announcement of such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offerneutral position.
(b) The Offer shall be made by means of an offer to purchase (As soon as reasonably practicable on the "Offer to Purchase") subject to date the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offeris commenced, Parent and Sub shall file with the SEC Commission a Tender Offer Statement on Schedule TO (together with all amendments and supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which . The Schedule TO shall contain ----------- (included as an exhibit exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase Purchase") and a the related letter of transmittal (the "Letter of ----------------- --------- Transmittal") and summary advertisement, as well as all other information and ----------- exhibits required by law (which Schedule TO, Offer to Purchase, Letter of Transmittal, summary advertisement (and such Schedule TO other information and the documents included therein pursuant to which the Offer will be madeexhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"), . The Company and Parent its counsel shall be --------------- given reasonable opportunity to review and Sub shall cause comment upon the Schedule TO prior to be disseminated its filing with the Offer Documents to holders of Shares as and to the extent required by applicable federal securities lawsCommission. Parent and Sub agree that the Offer Documents The Schedule TO shall comply in all material respects with the Exchange Act and the Offer Documentsprovisions of applicable federal securities laws and, on the date filed with the Commission and the date first published, sent or given to the Company's stockholdersholders of the Shares, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading, except that no covenant representation is made by Parent or Sub with respect to any information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer DocumentsSchedule TO. Each of ParentParent and Sub, Sub on the one hand, and the Company Company, on the other hand, agrees to promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC Commission and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders Each of the Company. Parent and Sub agree agrees to provide the Company and its counsel with information with respect to any oral comments Parent, and copies of any written comments Parent and Sub or their counsel may receive from the SEC Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with shall provide the Company and its counsel an opportunity to participate in responding the response of Parent or Sub to any such comments, including by participating with Parent and Sub or their counsel in any discussions with the Commission or its staff.
Appears in 1 contract
Samples: Merger Agreement (Royal Ahold)
The Offer. (a) 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 in Exhibit on Annex A hereto (the "Tender Offer Conditions") shall ------- ----------------------- have occurredoccurred and are continuing, as promptly as practicable but in no event later than seven (7) business days following on the public announcement by Parent and fifth Business Day after the Company date of the Offer and Merger, this Agreement Sub shall, and Parent shall cause 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 thereunder, the "Exchange Act"), ) the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, payment and to pay for, for any Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions Tender Offer Conditions. Subject to the proviso set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent immediately succeeding sentence and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights obligations of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to extend the Offer under certain circumstances as set forth in Exhibit A this Section 2.1(a), 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Tender Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the OfferConditions. Parent and Sub expressly reserve the right, in their sole discretion, right to modify the terms of the Offer, except thatincluding, without limitation, to extend the Offer beyond any scheduled expiration date or waive any Tender Offer Condition; provided, however, that neither Parent nor Sub -------- ------- shall, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares subject to be purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) impose any material additional conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Offer, (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer Offer, (other than adding consideration); or (viv) amend make any other material change to the terms of the Offer which is adverse in a any manner adverse to the holders of the Shares, (vi) extend the expiration date of the Offer beyond the twentieth (20/th/) Business Day after commencement of the Offer except (A) as required by applicable law, (B) as specified below in the sixth sentence of this Section 2.1(a) or (C) that if any condition to the Offer has not been satisfied or waived, Sub may, in its sole discretion, extend the expiration date of the Offer from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, unless Parent reasonably believes that such condition is not capable of being satisfied within such time, in which case Sub may extend the expiration date of the Offer for a period up to twenty (20) Business Days, but in no event later than the Termination Date, (vii) waive the Minimum Condition, (viii) waive the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A unless Sub shall pay for all Shares validly tendered and not withdrawn promptly following Sub's acceptance for payment of such Shares, or (ix) waive the Tender Offer Condition set forth in clause (iii)(f) of Annex A; provided, -------- however, that the Offer may be extended so as to comply with applicable rules ------- and regulations of the Commission or the staff thereof, unless the reason for such extension is the result of a material breach of this Agreement by Parent or Sub. Notwithstanding Assuming prior satisfaction or waiver of the foregoingTender Offer Conditions, Parent shall provide funds to Sub and Sub shall, as soon as legally permissible after the commencement thereof, accept for payment and pay for, in accordance with the terms of the Offer, the Shares which have been validly tendered and not withdrawn at or prior to the expiration of the Offer. If, on any expiration date of the Offer, more than 80% but less than 90% of the Shares have been validly tendered and not withdrawn, Sub may, without the consent of the Company (i) Company, extend the Offer, if at Offer for up to ten (10) Business Days in the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, aggregate notwithstanding that notwithstanding anything herein to the contrary, if any of the all conditions to the Offer are not satisfied have been satisfied, so long as Sub irrevocably waives the continued satisfaction of any of the Tender Offer Conditions, other than (x) the Minimum Condition, (y) the condition contained in clause (iii)(f) of Annex A, to the extent this Agreement is terminated pursuant to Section 8.1(a), 8.1(b)(i), 8.1(c), 8.1(d)(iii) or waived 8.1(d)(iv) or (z) any of the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A, but only to the extent that the failure of such condition is due to an event making it illegal to purchase Shares pursuant to the Offer. If, on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition would have expired due to the failure to satisfy (w) any of the Tender Offer Conditions set forth in clause (iii)(a), (iii)(b) or conditions are satisfied (iii) (c) of Annex A, (x) the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or waived unless such condition or conditions could not reasonably be expected to be satisfied by (y) the Outside Date; providedMinimum Condition, furtherParent shall, that in no event shall Parent and at the request of the Company, cause Sub be required to extend the expiration date of the Offer beyond (A) in the Outside Date; case of clause (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC"w) or the staff thereof applicable (x), from time to the Offer; (iii) extend the Offer time for any reason on one or more occasions for an aggregate period of periods not more exceeding, in each case, ten (10) Business Days, but in no event later than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) Termination Date and (iiB) in the case of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended clause (the "DGCL"y); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional not exceeding, in the aggregate, twenty (20) business days Business Days, but in no event later than the aggregate pursuant to Rule 14d-11 of the Exchange ActTermination Date, unless Parent, in each case subject case, reasonably believes at such time that such Tender Offer Condition is not capable of being satisfied. In addition, notwithstanding anything in this Section 2.1(a) to the right of Parentcontrary, Sub or if the Company to terminate this Agreement pursuant shall have affirmatively announced to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions stockholders of the OfferCompany a neutral position with respect to an Acquisition Proposal, Sub Parent shall, and Parent shall at the request of the Company, cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for Sub to extend the expiration date of the Offer to ten (after giving effect to any required withholding tax), as promptly as practicable 10) Business Days after the date on which Sub first accepts shares for payment pursuant to the Offer (of initial announcement of such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offerneutral position.
(b) The Offer shall be made by means of an offer to purchase (As soon as reasonably practicable on the "Offer to Purchase") subject to date the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offeris commenced, Parent and Sub shall file with the SEC Commission a Tender Offer Statement on Schedule TO (together with all amendments and supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which . The Schedule TO shall contain ----------- (included as an exhibit exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase Purchase") and a the related letter of transmittal (the "Letter of ----------------- --------- Transmittal") and summary advertisement, as well as all other information and ----------- exhibits required by law (which Schedule TO, Offer to Purchase, Letter of Transmittal, summary advertisement (and such Schedule TO other information and the documents included therein pursuant to which the Offer will be madeexhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"), . The Company and Parent its counsel shall be --------------- given reasonable opportunity to review and Sub shall cause comment upon the Schedule TO prior to be disseminated its filing with the Offer Documents to holders of Shares as and to the extent required by applicable federal securities lawsCommission. Parent and Sub agree that the Offer Documents The Schedule TO shall comply in all material respects with the Exchange Act and the Offer Documentsprovisions of applicable federal securities laws and, on the date filed with the Commission and the date first published, sent or given to the Company's stockholdersholders of the Shares, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading, except that no covenant representation is made by Parent or Sub with respect to any information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer DocumentsSchedule TO. Each of ParentParent and Sub, Sub on the one hand, and the Company Company, on the other hand, agrees to promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC Commission and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders Each of the Company. Parent and Sub agree agrees to provide the Company and its counsel with information with respect to any oral comments Parent, and copies of any written comments Parent and Sub or their counsel may receive from the SEC Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with shall provide the Company and its counsel an opportunity to participate in responding the response of Parent or Sub to any such comments, including by participating with Parent and Sub or their counsel in any discussions with the Commission or its staff.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredSection 8, as promptly as practicable after the date of this Agreement but in no event later more than seven (7) business days following ten Business Days after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub shall, shall (and Parent shall cause Sub to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended Act) the Offer.
(together b) In accordance with the rules terms and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation conditions of Sub tothis Agreement, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant subject only to the Offer shall be subject satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Exhibit A Annex I (collectively, the "“Offer Conditions"”) (any of which may be waived in whole or in part by Parent and Sub in their sole discretionand, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for the sole benefit avoidance of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such conditions (doubt, no other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Companyconditions, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), at or as promptly as practicable after following the date on which Sub first accepts shares Expiration Time, irrevocably accept for payment pursuant to purchase (the time of acceptance for purchase, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to but in any event within three (3) Business Days (calculated as set forth in Rule 14d-11 of 14d-1(g)(3) under the Exchange Act, the "Acceptance Date") thereafter) pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Sub, at the Offer Acceptance Time and on a timely basis at all times thereafter, the funds necessary to purchase any shares of Company Common Stock that Sub becomes obligated to purchase pursuant to the Offer.
(bc) The Offer shall be made by means of an offer to purchase (the "“Offer to Purchase"”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other Offer Conditions. Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise expressly provided by this Agreement, without the prior written consent of the Company, Sub shall not, and Parent shall cause Sub not to, (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose any conditions to the Offer other than the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions (i) in a manner that adversely affects the holders of Company Common Stock or that makes such Offer Condition more difficult to satisfy or (ii) in any other circumstance, without the consent of the Company, not to be unreasonably withheld, delayed or conditioned, (F) amend, modify or waive the Minimum Condition, (G) except as otherwise required or expressly permitted by Section 1.1(e), extend or otherwise change the Expiration Time, (H) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (I) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to the holders of Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Section 8.
(d) The Offer shall expire at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the date that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(e), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to the parties’ respective rights to terminate this Agreement pursuant to Section 8, Sub shall, and Parent shall cause Sub to, extend the Offer from time to time as follows:
(i) If, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Sub shall be required to, and Parent shall be required to cause Sub to, extend the Offer on no more than two occasions in consecutive increments of five Business Days each (each such increment to end at 5:00 p.m., New York City time, on the last Business Day of such increment) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that Sub shall not be required to extend the Offer to a date later than the Termination Date unless the breach by Parent or Sub of any of their representations and warranties set forth in Exhibit A. On this Agreement or their failure to perform any of their obligations under this Agreement has been the principal cause of or resulted in the failure of the Offer Acceptance Time to occur by the Termination Date;
(ii) Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the NASDAQ Stock Market LLC (the “NASDAQ”) or its staff; and
(iii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any action in accordance with Section 9.9 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Sub, the Expiration Time shall be extended (A) for the period during which such action is pending or (B) by such other time period established by the court presiding over such action, as the case may be. Sub shall not, and Parent shall not permit Sub to, extend the Offer in any manner except as required or expressly permitted pursuant to this Section 1.1(e).
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action.
(g) In the event that this Agreement is terminated in accordance with Section 8, Sub shall (and Parent shall cause Sub to) as promptly as practicable (and in any event within 24 hours of such termination) irrevocably and unconditionally terminate the Offer, and shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Parent or 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 on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all exhibits, amendments and supplements or amendments thereto, the "“Schedule TO"”) with respect to the Offer, which shall that will contain as an exhibit or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement (such the Schedule TO and the TO, together with all documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement shares 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 Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsCommon Stock. Each of Parent, Sub and the Company agrees to promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Sub further agree agrees to take use all steps necessary reasonable efforts to promptly cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to promptly be disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent, Sub or Parent’s legal counsel any information concerning the Company and the Company’s subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents. The Company and its counsel shall be given reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub agree to provide the Company and its counsel with any comments (including a summary of any oral comments) that Parent, 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 comments. Each of Parent and to cooperate with Sub shall give the Company and its counsel a reasonable opportunity to participate in responding the response to any comments of the SEC or its staff with respect to the Offer Documents and shall respond promptly to any such comments.
(i) Parent, Sub and the Exchange Agent with respect to the Offer shall be entitled to deduct and withhold from the Offer Price payable pursuant to the Offer such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “Code”), or under any provision of state, local or foreign Tax Law. To the extent amounts are so withheld and paid over to the appropriate Governmental Authority, the withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made.
Appears in 1 contract
The Offer. (a) Provided that Subject to the terms of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as reasonably practicable but in no event later than seven (7) business days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "“Exchange Act"”), the Offer at the Offer PriceOffer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, and pay for, any Shares shares of Company Common Stock tendered and not withdrawn pursuant to the Offer shall be are subject to the satisfaction of the conditions set forth in Exhibit A (the "“Offer Conditions"”). The Offer shall expire at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) (any such time, the “Initial Expiration Date,” and such time, or such subsequent time to which the expiration of which may be waived the Offer is extended in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub expressly reserves the right, in its sole discretion, to waive, in whole or in part by Parent and Sub in their sole discretionpart, except as expressly provided in the any Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action Condition or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) change, modify or waive the Minimum Tender Condition, (iv) impose any material conditions to the Offer other than in addition to the Offer Conditions conditions set forth in Exhibit A or modify the Offer Conditions (other than to waive or change any Offer Conditions Condition in a manner adverse in any material respect to the extent permitted by this Agreement); any holders of Company Common Stock, (ivv) except as otherwise provided in the next sentencethis Section 1.1(a) or Section 1.1(b), extend or otherwise change the Offer beyond any scheduled expiration date; Expiration Date of the Offer, (vvi) change the form of consideration payable in the Offer (other than adding consideration); or (vivii) amend otherwise amend, modify or supplement any other material of the terms of the Offer in a manner adverse in any material respect to any holders of Company Common Stock. Notwithstanding anything in this Agreement to the holders of Shares. Notwithstanding the foregoingcontrary, Merger Sub may, in its sole discretion, without the consent of the Company Company, (iA) without limiting Parent’s or Merger Sub’s obligations under the following sentence, extend the OfferOffer on one or more occasions, in consecutive increments of up to ten Business Days each, with the length of such period to be determined by Parent or Merger Sub (or such longer period as the parties hereto may agree), if at the on any then-scheduled or extended expiration date Expiration Date of the Offer any of the Offer Conditions shall not be have been satisfied or, to the extent waivable by Parent or Merger Sub, waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer; (iii) extend . Parent and Merger Sub agree that, to the Offer for extent requested in writing by the Company prior to any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting then-scheduled Expiration Date of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of DelawareOffer, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case but subject to the Parent’s right of Parent, Sub or the Company to terminate this Agreement pursuant to Section 8.1, Merger Sub shall (and Parent shall cause Merger Sub to) (A) if any of the terms hereof. Subject Offer Conditions set forth in clause (ii) of Exhibit A or in paragraph (a) or (b) of clause (iii) of Exhibit A shall not have been satisfied or, to the foregoing extent waivable by Parent or Merger Sub, waived, and applicable law provided that it is reasonably expected that such condition or conditions shall be satisfied prior to the Termination Date, extend the Offer on one or more occasions, in consecutive increments of up to ten Business Days each, with the length of such period to be determined by Parent or Merger Sub (or such longer period as the parties hereto may agree), until such time as such Offer Conditions are satisfied (but not beyond the Termination Date) and (B) if any of the Minimum Tender Condition or the Offer Conditions set forth in paragraph (d) or (e) of clause (iii) of Exhibit A shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived on such then-scheduled Expiration Date, but all the other Offer Conditions set forth in Exhibit A shall be satisfied on such then-scheduled Expiration Date, extend the Offer on one or more occasions, in consecutive increments of up to ten Business Days each, with the length of such period to be determined by Parent or Merger Sub (or such longer period as the parties hereto may agree), for an aggregate period of time of not more than 20 Business Days; provided, however, that Merger Sub shall not be required to extend the Offer beyond the Termination Date.
(b) Notwithstanding anything to the contrary set forth in Section 1.1(a), if, at any Expiration Date, all of the Offer Conditions (other than the Minimum Tender Condition) shall have been satisfied or have been waived, such that the number of shares of Company Common Stock validly tendered in the Offer and not properly withdrawn is less than that number of shares of Company Common Stock which, when combined with the Top-Up Shares to be issued to Merger Sub upon exercise of the Top-Up Option, would result in Merger Sub owning one more share than 90% of the shares of Company Common Stock outstanding (including any shares of Company Common Stock issued upon exercise of the Top-Up Option) (the “Short-Form Merger Threshold”), then in such case Merger Sub may, in its sole discretion, without the consent of the Company:
(i) extend the Offer for one or more successive periods of up to 10 Business days each, with the length of such period to be determined by Parent or Merger Sub (or any longer period as may be requested by Merger Sub and approved in advance by the Company, such approval not to be unreasonably withheld), until the Termination Date in order to permit additional shares of Company Common Stock to be tendered into the Offer such that the Short-Form Merger Threshold may be attained; or
(ii) if the Clearance Date has occurred, terminate the Offer pursuant to Section 1.1(d).
(c) On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Sub shall, and Parent shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect subject to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment of Tax pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"Section 1.1(g)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the Expiration Date of the Offer. 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 on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right, in its sole discretion, to extend the Offer for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act following the Offer Closing, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. The Offer may not be terminated prior to its Expiration Date, unless this Agreement is validly terminated in accordance with Article VIII. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.1, prior to the acceptance for payment of 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 Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.1 shall affect any termination rights in Article VIII of this Agreement. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries (other than in a fiduciary capacity) will be tendered in the Offer.
(bd) The If at any then-scheduled Expiration Date (i) any Offer Condition shall be made by means of an offer to purchase (the "Offer to Purchase") subject not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived and (ii) the Clearance Date has occurred, then Merger Sub may irrevocably and unconditionally terminate the Offer. If the Offer Conditions set forth is terminated pursuant to this Section 1.1(d), the Company shall proceed with and take all actions necessary to hold the Shareholders Meeting as promptly as practicable and use its reasonable best efforts to solicit proxies from the Company’s shareholders in Exhibit A. favor of the Merger for purposes of obtaining the Shareholder Approval in accordance with the terms of this Agreement.
(e) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "filed under cover of Schedule TO") TO with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase purchase and a related letter of transmittal and transmittal, summary advertisement and other ancillary 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 . The Company shall promptly furnish to Parent and Merger Sub shall cause to be disseminated all information concerning the Offer Documents to holders of Shares as and to the extent Company required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Merger Sub further agree to 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 to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal securities lawsLaws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, and shall use its counsel reasonable best efforts to give the Company the opportunity to participate in any substantive telephonic communications with the staff of the SEC related thereto. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall be given provide the Company a reasonable opportunity to review and comment upon the on such Offer Documents prior to their filing with or response (including the SEC or dissemination to the stockholders of the Company. proposed final version thereof), and Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding shall give reasonable consideration to any such comments.
(f) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(g) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable Law. To the extent that amounts are so withheld and paid over by Merger Sub to the appropriate Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Merger Sub.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events conditions set forth in Exhibit A Annex I hereto (the "Tender Offer Conditions") shall have occurredexist after the date hereof and prior to the commencement of the Offer, as promptly as practicable practicable, but in no event not later than seven (7) business days following the public announcement by Parent and the Company of the Offer and MergerMarch 20, Sub 2000, Purchaser shall, and Parent shall cause Sub Purchaser to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer ) an offer to purchase all outstanding Common Shares at the Offer PricePrice and shall take the actions set forth in Section 1.3 below and shall take all other actions as required by any order, writ, injunction, judgment, arbitration award, agency requirement, decree, law, statute, ordinance, rule or regulation (each a "Law"). The obligation of Sub to, and of Parent Purchaser to cause Sub to, consummate the Offer and accept for payment, and payment or pay for, for any Common Shares tendered and not withdrawn pursuant thereto will be subject only to the Offer shall be subject to satisfaction of the conditions set forth in Exhibit A (the "Tender Offer Conditions".
(b) (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in Without the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the prior written consent of the CompanySpecial Committee and the Company Board, Sub Purchaser shall not (i) reduce the number of Shares subject impose conditions to the OfferOffer in addition to the Tender Offer Conditions, (ii) reduce modify or amend the Offer Price, (iii) impose any material conditions to the Offer other than the Tender Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms term of the Offer in a manner adverse to the holders of Common Shares, (iii) reduce the number of Common Shares subject to the Offer, (iv) reduce the Offer Price, (v) except as provided in the following sentence, extend the Offer if all of the Tender Offer Conditions are satisfied or waived, or (vi) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub Purchaser may, in accordance with applicable Law, and without the consent of the Company Special Committee, extend the Offer at any time, and from time to time, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any then-scheduled expiration date of the Offer, Parent any of the conditions to Purchaser's obligation to accept for payment and Sub pay for all Common Shares shall be required to extend the Offer until such condition or conditions are not have been satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Datewaived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the its staff thereof applicable to the Offer; or (iii) extend if all Tender Offer Conditions are satisfied or waived but the Offer for any reason on one or more occasions number of Common Shares tendered, together with Common Shares already beneficially owned by Parent, is at least equal to 66 2/3%, but less than 90%, of the then-outstanding number of Common Shares, for an aggregate period of not more than 15 20 business days (for all such extensions) beyond the latest expiration date that would otherwise be permitted under clauses clause (i) and or (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware(such aggregate period, as amended (the "DGCLSubsequent Offering Period"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate . So long as this Agreement pursuant to is in effect, the terms hereof. Subject to Offer has been commenced and the foregoing and applicable law and upon the terms and subject to the conditions of the OfferTender Offer Conditions have not been satisfied or waived, Sub Purchaser shall, and Parent shall cause it Purchaser to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to cause the Offer not to expire, subject, however, to Purchaser's and Parent's
(such date, regardless of whether c) Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree Purchaser represent that the Offer Documents shall (as defined in Section 1.3(a)) will comply in all material respects with the Exchange Act provisions of applicable federal securities Laws and, on the date filed with the SEC and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no covenant representation is made by Parent or Sub Purchaser with respect to information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer Documents. Each of ParentParent and Purchaser, Sub on the one hand, and the Company Company, on the other hand, agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respect, respect and Parent and Sub Purchaser further agree agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentsLaws.
Appears in 1 contract
Samples: Merger Agreement (Metropolitan Life Insurance Co/Ny)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 7.1 and none subject to the provisions of the events set forth in Exhibit A shall have occurredthis Agreement, as promptly as practicable but in including without limitation ANNEX A, no event later than seven (7) five business days following after the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and date hereof Parent shall cause Sub to, commenceand Sub shall, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended 1934 (together with the rules and regulations thereunder, the "Exchange Act")) a tender offer (the "Offer") to purchase all issued and outstanding Shares, at a price per Share of $20.50 (such amount, or any greater amount per Share paid pursuant to the Offer, the Offer at "Per Share Price") net to each seller in cash. Subject to the Offer Price. The obligation provisions of this Agreement, including without limitation ANNEX A, Parent shall cause Sub to, and Sub shall, use its commercially reasonable best efforts to consummate the Offer as soon as legally permissible and subject to the provisions of this Agreement, including without limitation ANNEX A, Parent to shall cause Sub to, consummate the Offer and Sub shall, accept for payment, payment and pay for, the Per Share Price for any and all Shares validly tendered and not withdrawn pursuant to the Offer shall be subject to as soon as practicable after the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions made by means of the Offer to Purchase (as defined in Section l.l(c)) and related letter of transmittal (the "Letter of Transmittal"). Sub expressly reserves the right to increase the Per Share Price payable in the Offer. .
(b) The obligation of Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of consummate the Offer, and to accept for payment and pay for Shares tendered pursuant to the Offer, shall be subject to only those conditions set forth in ANNEX A. Sub may in its sole discretion waive any such condition other than the Minimum Condition (defined in ANNEX A) or the condition relating to the expiration of the waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"). Sub shall not, without the prior written consent of the Company's Board of Directors (the "Board"), (i) impose conditions to the Offer in addition to those set forth in ANNEX A, (ii) decrease the Per Share Price, (iii) change the form of consideration (other than by adding consideration), (iv) reduce the number of Shares sought to be purchased in the Offer, (v) extend the expiration date of the Offer (except thatas provided below in this paragraph), or (vi) otherwise change any term of the Offer in any manner adverse to the holders of Shares, it being agreed that a waiver by Sub of any condition in whole or in part (other than the Minimum Condition) at any time and from time to time in its discretion shall not be deemed to be materially adverse to any holder of Shares. The Offer initially shall expire on the twentieth business day after its commencement; PROVIDED, HOWEVER, that Sub may, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, Offer (on one or more occasions) beyond the scheduled expiration date if at the scheduled or extended expiration any such date of the Offer any of the Offer Conditions conditions to Sub's obligation to purchase Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period to the extent required by any rule, regulation, interpretation rule or position regulation of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer (on a one-time basis only) for any reason on one or more occasions for an aggregate period of not more than 15 five business days beyond the latest scheduled expiration date that would otherwise be permitted under clauses (i) and (ii) if all of this sentence if there shall not the conditions thereto have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting satisfied or waived and at least 51% but less than 90% of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock outstanding Shares have been validly tendered and not properly withdrawn pursuant to the Offer; PROVIDED FURTHER that, notwithstanding anything in the foregoing proviso to the contrary, Sub may not, without the Company's prior written consent, (A) extend the expiration date of the Offer if the failure to meet any condition to the Offer was directly or indirectly caused by an act or omission of Parent or Sub that constitutes a breach of this Agreement or (B) effect any individual extension under clause (i) in excess of the amount of time reasonably believed by Parent to be necessary to satisfy such condition, which shall in no event exceed 10 business days; PROVIDED FURTHER that if Sub does not consummate the Offer on the initial expiration date, or any extension thereof, due to the failure of one or more conditions in any of paragraphs (b) or (c)(i) through (iv) of ANNEX A to be satisfied, Parent shall cause Sub to, and Sub shall, unless the Company shall have materially breached this Agreement and failed to cure such breach within 15 days of being notified thereof in writing, extend the Offer one or more times until the earlier of (i) 11:59 p.m. New York City time on the sixtieth calendar day after the date of this Agreement or (ii) two business days after such time as such condition or conditions are satisfied or waived; PROVIDED FURTHER that Sub shall not be obligated to extend the Offer pursuant to the foregoing proviso if the condition that has not been satisfied is not reasonably capable of being cured or satisfied at or prior to the sixtieth calendar day after the date of this Agreement.
(bc) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements or amendments thereto, the "Schedule TO14D-1") with respect ), and shall take such steps as are reasonably necessary to the Offer, which shall contain as an exhibit or incorporate by reference cause the Offer to Purchase (defined below) to comply with applicable requirements of the federal securities laws 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"), and Parent and Sub shall cause to be disseminated to the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent The Schedule 14D-1 shall contain an offer to purchase (the "Offer to Purchase") and Sub agree that forms of the related Letter of Transmittal and summary advertisement, as well as all other information and exhibits required by law (the Offer Documents shall comply in all material respects to Purchase and such other documents, together with any amendments or supplements thereto, collectively, the Exchange Act and the "Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws"). The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule 14D-1 and the Offer Documents prior to their filing being filed with the SEC or dissemination disseminated to the stockholders of the Company's stockholders. Parent and Sub agree to shall provide the Company and its counsel with a copy of any written comments Parent, that Parent or Sub or their counsel may receive receives from the SEC or its staff with respect to the Schedule 14D-1 and the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
(d) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(e) Sub may, at any time, transfer or assign to Parent or to one or more corporations directly or indirectly wholly-owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but any such transfer or assignment shall not relieve Parent or Sub of its obligations with respect to the Offer or prejudice the rights of tendering stockholders to receive payment for Shares validly tendered and accepted for payment in the Offer.
Appears in 1 contract
Samples: Merger Agreement (Mc Merger Corp)
The Offer. (a) Provided that this Agreement shall not have been validly terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredSection 11.01, as promptly as practicable but (and in no any event later than seven within 10 days) after the date hereof, Merger Subsidiary shall commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 1000 Xxx) the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The Merger Subsidiary’s obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, payment and pay for, any 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 this Agreement) shall be subject solely to the satisfaction or waiver (if permitted hereunder) of the conditions set forth in Exhibit A Annex I hereto (the "“Offer Conditions"”) and shall not be subject to the satisfaction of any other conditions. The date on which Merger Subsidiary commences the Offer is referred to as the “Offer Commencement Date”. Merger Subsidiary shall not (and Parent shall not permit Merger Subsidiary to) terminate or otherwise withdraw the Offer unless and until this Agreement has been validly terminated pursuant to and in accordance with Section 11.01. In the event that this Agreement is validly terminated pursuant to and in accordance with Section 11.01, Merger Subsidiary shall promptly (and in any event within one Business Day after the date of such termination) terminate and withdraw the Offer and, notwithstanding the satisfaction or waiver of any Offer Conditions, shall not accept for payment or pay for any Shares theretofore tendered in the Offer.
(b) Merger Subsidiary expressly reserves the right to waive any of which may be waived the Offer Conditions and, prior to the expiration of the Offer, to make any change in whole the terms of or in part by Parent 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 Sub in their sole discretionpay for Shares validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration of the Offer, except as expressly provided in other than the Offer Conditions;
(ii) and to waive or change the rights of Parent and Sub to terminate this Agreement Minimum Condition (as provided defined in Section 8.1. The conditions to Annex I);
(iii) decrease the Offer set forth Price;
(iv) change the form of consideration to be paid in Exhibit A are for the sole benefit Offer;
(v) decrease the number of Parent and Sub and may be asserted by Parent and Sub regardless of Shares sought in the circumstances giving rise to any such conditions Offer;
(other than as a result of any action vi) extend or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial otherwise change the expiration date of the Offer shall be the twentieth except as otherwise provided herein; or
(20thvii) business day following commencement amend or modify any of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions Conditions or amend or modify any of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent in either case in a manner that broadens any of the CompanyOffer Conditions, Sub shall not (i) reduce the number of Shares subject would require Merger Subsidiary to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner is otherwise materially adverse to the holders of Sharesthe Shares (in their capacity as such).
(c) Unless 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 1000 Xxx) after the Offer Commencement Date. Notwithstanding the foregoing, Sub mayunless this Agreement shall have been validly terminated pursuant to and in accordance with Section 11.01, without Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) extend the consent of the Company Offer (i) extend the Offerfor successive extension periods of reasonable duration if, if at the scheduled or extended expiration date of the Offer (as it may be extended from time to time in accordance with this Agreement), any of the Offer Conditions shall not be have been satisfied or waived, until such time as such conditions Offer Conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any applicable rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable 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 the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Subsidiary. If all of the Offer Conditions have been satisfied or waived prior to the expiration of the Offer; , and Merger Subsidiary is permitted by Applicable Law to accept for payment and pay for all Shares that have been validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration of the Offer, Merger Subsidiary shall not (iiiand Parent shall not permit Merger Subsidiary to) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond without the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting prior written consent of the Company's stockholders . In the event that, following the expiration of the Offer and Merger Subsidiary’s acceptance for payment of all Shares validly tendered and not properly withdrawn pursuant to the Offer, Parent and Merger Subsidiary are unable to effect the Merger pursuant to the short form merger procedures set forth in accordance with Section 253 of the General Corporation Law of the State of DelawareDelaware Law, as amended (the "DGCL"); and (iv) after the Acceptance DateMerger Subsidiary may, in its sole discretion, provide for one or more a subsequent offering periods of up to an additional twenty period (20“Subsequent Offering Period”) business days in the aggregate pursuant to accordance with Rule 14d-11 of the Exchange 1934 Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant .
(d) Subject to the terms hereof. Subject and conditions set forth in this Agreement and to the foregoing and applicable law and upon the terms and subject to the conditions satisfaction or waiver of the OfferOffer Conditions, Sub Merger Subsidiary shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax)for, as promptly as practicable (i) after the date on which Sub first accepts shares for payment expiration of the Offer, all Shares validly tendered and not properly withdrawn pursuant to the Offer (such date, regardless of whether Parent the date on which and Sub elect to provide time at which Shares are first accepted for one or more subsequent offering periods pursuant to Rule 14d-11 of payment under the Exchange ActOffer, the "“Acceptance Date"”) and (ii) all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to in the OfferSubsequent Offering Period, if any.
(be) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to As soon as practicable on the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferCommencement Date, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that shall include the Offersummary term sheet required thereby and, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and Purchase, a related form of letter of transmittal and transmittal, summary advertisement and other customary documents, letters and other instruments (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable federal securities laws, applicable rules or regulations of NASDAQ or any other Applicable Laws. Each of Parent and Sub agree that Merger Subsidiary shall cause the Schedule TO and the Offer Documents shall to comply in all material respects with the Exchange requirements of the 1934 Act and all other Applicable Laws. The Company shall furnish Parent and Merger Subsidiary all information concerning the Company required by the 1934 Act to be set forth in the Schedule TO and the Offer Documents. Each of Parent, on Merger Subsidiary and the date first published, sent or given Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the Company's stockholdersextent that such information shall have become (or shall have become known to be) false or misleading in any material respect. In addition, if at any time prior to the expiration of the Offer, any information relating to the Offer, the Merger, Parent, Merger Subsidiary, the Company or any of 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 were are made, not misleading, except the party that no covenant is made by Parent or Sub with respect to discovers such information supplied by shall promptly notify the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respectother parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC. Parent and Sub further agree to take all steps necessary to Merger Subsidiary shall cause the Schedule TO, as so corrected, amended or supplemented, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable 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 upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub Merger 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 the receipt of such those comments or other communications and prior to responding to them, and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to cooperate provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the Company and its counsel in responding to any such commentsSEC.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredhereof, as promptly as practicable after the date hereof (but in no event later than seven the tenth (710th) business days day following the public announcement by Parent and the Company of the Offer and Mergerexecution hereof), Sub shall, and Parent shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), and Parent shall cause Sub to commence, the Offer to purchase all of the issued and outstanding Shares at a price per Share equal to $26.00 net to the holder thereof in cash, without interest and less any taxes required to be withheld as described in Section 3.04 (such amount for each Share, or any different amount per Share that may be paid pursuant to the Offer in accordance with the terms hereof, the “Offer Price”). The obligation Company agrees that no Shares held by the Company or any of Sub toits Subsidiaries (other than any Shares held on behalf of third parties) will be tendered pursuant to the Offer.
(b) The obligations of Sub, and of Parent to cause Sub toSub, consummate the Offer and to accept for payment, payment and pay for, for any Shares validly tendered and not validly withdrawn pursuant on or prior to the Offer Expiration Date (the “Tendered Shares”) shall be subject only to (i) the satisfaction of the Minimum Condition and (ii) the satisfaction or waiver by Sub of the other conditions set forth in Exhibit A Annex I hereto (such conditions, together with the "Minimum Condition, the “Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions”) and to the rights of Parent terms and Sub to terminate this Agreement as provided in Section 8.1conditions hereof. The conditions to the Offer set forth in Exhibit A Conditions are for the sole benefit of Parent and Sub and may be asserted waived by Parent or Sub, in whole or in part, at any time or from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Sub regardless only with the prior written consent of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the OfferCompany. Parent and Sub expressly reserve the right, in their sole discretion, 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 Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (vii) change the form of consideration payable in the Offer, (iii) reduce the number of Shares to be purchased by Sub in the Offer, (iv) waive or amend the Minimum Condition, (v) add to the Offer (Conditions or impose any other than adding consideration); or conditions to the Offer, (vi) amend any other material terms extend the expiration of the Offer except as required or permitted by 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. Notwithstanding the foregoing, Sub may, without the consent of the Company Shares or (iviii) extend abandon or terminate the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time except as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that expressly provided in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferAgreement.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
Samples: Merger Agreement (Inhibitex, Inc.)
The Offer. (a) Provided that Upon the terms and subject to the conditions of this Agreement shall not have been terminated in accordance with (including Article VIII and none of the events set forth in Exhibit A shall have occurredVII), as promptly as reasonably practicable following the date hereof, but in any event no event later than seven the tenth Business Day (7) business days following the public announcement unless otherwise agreed to by Parent and the Company Company) after the initial public announcement of the Offer and Mergerexecution of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunderAct, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, and pay for, any Shares shares of Common Stock and Class A Stock validly tendered and not properly withdrawn pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A Annex I (as they may be amended in accordance with this Agreement, the "“Offer Conditions"”).
(b) (any of which may be waived in whole or in part To the extent permitted by Law, Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Merger Sub expressly reserve the right, at any time, to waive, in their sole discretionwhole or in part, any Offer Condition (other than the Minimum Condition), to increase the Offer Prices or to modify the terms of the OfferOffer in a manner consistent with the terms of this Agreement; provided, except however, that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce the maximum number of Shares subject shares of Common Stock and Class A Stock sought to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Prices or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are in addition to the Offer Conditions, (other than adding consideration); v) modify or (vi) amend any other material terms of the existing Offer Conditions in a manner adverse to the holders of Shares. Notwithstanding the foregoingCommon Stock or the Class A Stock, Sub may(vi) except as otherwise required or expressly permitted by Section 1.1(d), without extend or otherwise change the consent Expiration Time, (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Common Stock or the Class A Stock or in any manner that materially delays or unreasonably interferes with, hinders or impairs the consummation of the Company Offer. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VII.
(ic) extend The Offer shall initially expire at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the Offer, if at date that is twenty (20) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the scheduled or extended expiration date Exchange Act) following the commencement of the Offer any of the Offer Conditions shall not be satisfied or waived, until (such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Subject to Article VII, Merger Sub shall, and Parent and shall cause Merger Sub shall be required to to, extend the Offer until such condition on one or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by more occasions, (i) for the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof or the New York Stock Exchange (the “NYSE”) applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Merger Sub (to the extent such waiver is permitted under this sentence if there Agreement and applicable Law), in consecutive increments of at least five Business Days each (with each such period to end at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time), on the last Business Day of such period), or such other duration as may be agreed to by Parent and the Company, in order to permit the satisfaction of such Offer Condition(s); provided, however, that (A) in either case, Merger Sub shall not have been tendered be required to extend the Offer to a sufficient number of Shares date later than the Outside Date, (B) any such extension shall not be deemed to enable impair, limit, or otherwise restrict in any manner the Merger to be effected without a meeting rights of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company parties hereto to terminate this Agreement pursuant to the terms hereof. Subject of Article VII, and (C) with respect to clause (ii) above, if, at any such scheduled Expiration Time, the foregoing only Offer Condition that has not been so satisfied or waived is the Minimum Condition, then Merger Sub shall not be required to extend the Offer for more than one such additional five Business Day increment (and applicable law and upon shall not be required to extend the Offer at any subsequent Expiration Time at which the Minimum Condition is not satisfied), but shall be entitled, at its sole discretion, to extend the Offer for more than one such additional five Business Day increment.
(e) On the terms and subject to the conditions of this Agreement, (i) at or as promptly as practicable following the OfferExpiration Time, Merger Sub shall, and Parent shall cause it Merger Sub to, irrevocably accept for payment (the time of acceptance for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the “Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"Time”) all shares of Company Common Stock and Class A Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock and Class A Stock validly tendered and not properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to purchase any shares of Common Stock and Class A Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.
(f) The Offer Prices payable in respect of each share of Common Stock and Class A Stock, respectively, shall be paid on the terms and subject to the conditions of this Agreement. The Company agrees that no shares of Common Stock and Class A Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(bg) Unless this Agreement is terminated pursuant to Article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company in its sole discretion. In the event this Agreement is terminated pursuant to Article VII, Merger Sub shall promptly (and in any event within three Business Days) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Common Stock or Class A Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares of Common Stock and Class A Stock to the tendering stockholders in accordance with applicable Law.
(h) The Offer Prices shall be made by means adjusted appropriately and proportionately to reflect the effect of an offer any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to purchase (the "Offer to Purchase") subject Common Stock or the Class A Stock, as applicable, occurring on or after the date of this Agreement and at or prior to the Offer Conditions set forth in Exhibit A. Acceptance Time, except for the Company’s ordinary dividend of $0.04 per share on each share of Common Stock and Class A Stock declared by the Company prior to the date hereof, and such adjustment to the Offer Prices shall provide to the holders of shares of Common Stock and Class A Stock the same economic effect as contemplated by this Agreement prior to such action.
(i) On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO") with respect to the Offer”), which shall contain as an exhibit or incorporate by reference the Offer an offer to Purchase purchase and a related letter of transmittal and summary advertisement 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 Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to the holders of Shares the Common Stock and Class A Stock as and to the extent required by applicable United States federal securities lawsLaws. The Company shall promptly furnish or otherwise make available to Parent and Sub agree or Parent’s legal counsel upon request all information concerning the Company that the Offer Documents shall comply in all material respects with is required by the Exchange Act and or other applicable Law to be set forth in the Offer Documents, on and all other information concerning 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 Company that may 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 reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided supplied by it or on its behalf for use inclusion or incorporation by reference in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Merger Sub further agree to shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected, amended or supplemented to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of Sharesthe Common Stock and Class A Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all written correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the SEC, on the other hand. Unless there has been an Adverse Recommendation Change, prior to the filing of the Offer Documents and any amendment or supplement thereto with the SEC or dissemination thereof to the holders of the Common Stock and Class A 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 amendment or supplement or response, and Parent and Merger Sub shall give reasonable consideration to any such comments. Unless the Offer Documents prior to their filing has been terminated in accordance with the SEC terms of this Agreement, in the event that Parent or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel receives any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, each shall use its commercially reasonable efforts to (i) respond promptly after the receipt of to such comments and (ii) take all other actions necessary to cooperate with resolve the Company and its counsel in responding to any such commentsissues raised therein.
Appears in 1 contract
The Offer. (a) Provided that this Agreement Subject to the following sentence, Purchaser shall not have been terminated in accordance with Article VIII (and none of the events set forth in Exhibit A Parent shall have occurredcause Purchaser to), as promptly as practicable but and in no event later than seven (7) five business days following after the public announcement by Parent and date of this Agreement, with prior notice to the Company of the Offer and MergerCompany, Sub shall, and Parent shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer at the Offer PriceOffer. The obligation obligations of Sub to, Purchaser to (and of Parent to cause Sub Purchaser to, consummate the Offer and ) accept for payment, payment and pay for, for any Shares validly tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction or waiver (to the extent permitted under applicable Laws) of the conditions set forth in Exhibit A Annex B (the "“Tender Offer Conditions") (any of which may be waived in whole or in part by Parent ”), and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (no other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement)conditions. The initial expiration date of the Offer shall be 12:00 midnight (Eastern Time) at the twentieth (20th) business day following commencement end of the Offerday on the date that is 20 business days after the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) (the initial “Expiration Time” and any expiration time and date established pursuant to an extension of the Offer in accordance with this Agreement, also an Expiration Time). The Purchaser expressly reserves the right (i) to increase the Offer Price shall be net and (ii) to waive any condition to the seller in cash, without interest thereon, upon the terms and subject Offer (to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to extent permitted under applicable Laws) or modify the terms of the Offer, except that, without the prior written consent of the Company, Sub Purchaser shall not (iA) reduce the number of Shares subject to the Offer, (iiB) reduce the Offer Price, (iiiC) impose any material conditions waive the Minimum Tender Condition, (D) add to the Offer other than the Tender Offer Conditions or amend or modify the any Tender Offer Conditions (other than to waive Condition in any Offer Conditions manner adverse to the extent permitted by this Agreement); holders of Shares, (ivE) except as otherwise provided in the next sentencethis Section 1.1, extend the Offer beyond any scheduled expiration date; Expiration Time, or (vF) change the form of consideration payable in the Offer Offer, provided, that nothing in this clause (other than adding consideration); or (viF) amend any other material terms of shall limit Purchaser’s ability to provide additional cash consideration in addition to the Offer in a manner adverse to the holders of SharesPrice. Notwithstanding the foregoing, Sub (x) Purchaser may, without the consent of the Company Company, (i) extend the OfferExpiration Time for one or more consecutive increments of not more than 20 business days each (the length of such period to be determined by Parent or Purchaser), if at the any otherwise scheduled or extended expiration date of the Expiration Time any Tender Offer any of the Offer Conditions shall Condition has not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not been satisfied or waived on any scheduled expiration date of (to the Offerextent permitted under applicable Laws), Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer Expiration Time for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.,
Appears in 1 contract
Samples: Merger Agreement (Einstein Noah Restaurant Group Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none VII, within ten Business Days after the date of the events set forth in Exhibit A this Agreement, Merger Sub shall have occurred, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Merger Sub to, commence, ) commence (within the meaning of Rule 14d-2 14d‑2 under the Securities Exchange Act of 1934, as amended Act) the Offer.
(together b) In accordance with the rules terms and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation conditions of Sub tothis Agreement, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant subject only to the Offer shall be subject satisfaction or waiver (to the extent such waiver is permitted by applicable Law) by Merger Sub of the conditions set forth in Exhibit A Annex I (collectively, the "“Offer Conditions"”) (any of which may be waived in whole or in part by Parent and Sub in their sole discretionand, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for the sole benefit avoidance of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such conditions (doubt, no other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cashconditions, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), at or as promptly as practicable after following the date on which Sub first accepts shares Expiration Time, irrevocably accept for payment pursuant to (the time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to but in any event within three Business Days (calculated as set forth in Rule 14d-11 of 14d‑1(g)(3) under the Exchange Act, the "Acceptance Date") thereafter) pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer at a price per share of Company Common Stock equal to the Offer Price, net to the seller in cash, without interest. The consummation of the Offer, and the obligation of Merger Sub to accept for payment and pay for Company Common Stock tendered pursuant to the Offer, shall be subject only to the terms and conditions of this Agreement and to the satisfaction, or waiver (to the extent such waiver is permitted by applicable Law) by Merger Sub, of the Offer Conditions.
(bc) The Offer shall be made by means of an offer to purchase (the "“Offer to Purchase"”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right (in its sole discretion) to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided that unless otherwise expressly provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose any conditions to the Offer that are in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, (F) amend, modify or supplement any of the Offer Conditions set forth in Exhibit A. On a manner that adversely affects the holders of Company Common Stock or that makes such Offer Conditions more difficult to satisfy without the consent of the Company, not to be unreasonably withheld, delayed or conditioned, (G) except as otherwise required or expressly permitted by Section 1.01(e), extend or otherwise change the Expiration Time, (H) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (I) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to the holders of Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time unless this Agreement is terminated in accordance with Article VII.
(d) The Offer shall expire at one minute after 11:59 p.m. New York City time on the date that is 20 Business Days (calculated in accordance with Rule 14d‑1(g)(3) under the Exchange Act) following (and including the day of) the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.01(e), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to the parties’ respective rights to terminate the Agreement pursuant to Article VII, Merger Sub may, without the Company’s consent, or shall, as applicable, extend the Offer from time to time as follows (and Merger Sub shall not, and Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or expressly permitted pursuant to this Section 1.01(e)):
(i) if, at the then-scheduled Expiration Time, each Offer Condition (other than the Minimum Condition) shall have been satisfied or waived by Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law) and the Minimum Condition shall not have been satisfied, then Merger Sub may elect to (and if so requested by the Company shall) extend the Offer on one or more occasions in consecutive increments of such duration as requested by the Company (or if not so requested by the Company, as determined by Merger Sub), but no more than ten Business Days each (each such increment to end at 5:00 p.m., New York City time, on the last Business Day of such increment) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided that the Company shall not request Merger Sub to, and Merger Sub shall not be required to, extend the Offer pursuant to this sentence on more than three occasions; provided, further, that Merger Sub shall not be required to extend the Offer to a date later than the Outside Date;
(ii) if, at the then-scheduled Expiration Time, any Offer Condition (other than the Minimum Condition) shall not have been satisfied or waived by Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub may elect to (and if so requested by the Company shall) extend the Offer on one or more occasions in consecutive increments of such duration as requested by the Company (or if not so requested by the Company, as determined by Merger Sub), but no more than ten Business Days each (each such increment to end at 5:00 p.m., New York City time, on the last Business Day of such increment) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided that Merger Sub shall not be required to extend the Offer to a date later than the Outside Date; and
(iii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the Securities and Exchange Commission (the “SEC”) or its staff or the Nasdaq Global Select Market (the “Nasdaq”) or its staff (including in order to comply with Exchange Act Rule 14e-1(b) in respect of any change in the Offer Price). Notwithstanding the foregoing, in the event that, as a result of the extension of the Offer in accordance with the provisions of this Section 1.01(e), the Expiration Time would occur on the date that is the Outside Date, the Expiration Time shall instead occur at 5:00 p.m., New York City time, on the Business Day immediately preceding the Outside Date.
(f) If between the date of this Agreement and the Offer Acceptance Time the outstanding shares of Company Common Stock shall have been changed into, or exchanged for, a different number of shares or a different class by reason of the occurrence or record date of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change, the Offer Price shall be equitably adjusted to reflect such stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change; provided that this sentence shall not be construed to permit the Company to take any action with respect to its securities that is prohibited by Section 5.01.
(g) In the event that this Agreement is terminated in accordance with Article VII, Merger Sub shall (and Parent shall cause Merger Sub to) as promptly as practicable (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 Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Parent or 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 on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all exhibits, amendments and supplements or amendments thereto, the "“Schedule TO"”) with respect to the Offer, which shall contain that will include as an exhibit or incorporate by reference exhibits the Offer to Purchase and a Purchase, form of related letter of transmittal and transmittal, summary advertisement and other ancillary documents and instruments pursuant to which the Offer will be made (such the Schedule TO and the TO, together with all documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares shares of Company Common Stock, in each case, as and to the extent required by applicable federal securities lawsLaws. 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, that if Merger Sub provides guaranteed delivery procedures, for purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub agree that shall include for purposes of its determination thereof shares of Company Common Stock tendered in the Offer pursuant to guaranteed delivery procedures (and such shares of Company Common Stock shall be deemed to be validly tendered) if and only if shares of Company Common Stock subject to such guarantees have been received by, or on behalf of, Xxxxxx Sub as of the Expiration Time. The Company shall provide to Parent or Merger Sub all information concerning the Company and the Company’s Subsidiaries as may be reasonably requested by Parent or Merger Sub in connection with the Offer Documents and shall comply otherwise reasonably assist and cooperate with Parent and Merger Sub in all material respects with the Exchange Act preparation of the Offer Documents and the Offer Documentsresolution of any comments thereto received from the SEC. No representation, on the date first published, sent warranty 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 is made by Parent or Merger Sub with respect to information supplied by or on behalf of the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parentthe Company, Parent and Merger Sub and the Company agrees to shall correct promptly any information provided by it for use in the Offer Documents as promptly as reasonably practicable if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect. Parent and Xxxxxx Sub shall notify the Company promptly on the receipt of any comments or communications from the SEC (whether written or oral) and of any request by the SEC for amendments or supplements to the Offer Documents and shall supply the Company with copies of all written correspondence between Parent, Merger Sub or any of their respective Representatives, on the one hand, and the SEC, on the other hand, with respect to the Offer Documents. Parent and Xxxxxx Sub further agree shall use their respective reasonable best efforts to take all steps necessary respond as promptly as reasonably practicable to cause any comments received from the Schedule TO, as so corrected, SEC concerning the Offer Documents and to be filed resolve such comments with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and SEC. Prior to the extent required by applicable federal securities laws. The filing of the Offer Documents (or any amendment or supplement thereto) or responding to any comments from the SEC with respect thereto, Parent and Merger Sub shall provide the Company and its counsel shall be given with a reasonable opportunity to review and comment upon to propose comments on such document or response, which Parent and Merger Sub shall consider in good faith.
(i) As reasonably requested by the Offer Documents prior to their filing with Company, Parent shall keep the SEC or dissemination to the stockholders Company reasonably informed on a reasonably current basis of the Company. Parent and Sub agree to provide status of the Company and its counsel any comments ParentOffer, Sub or their counsel may receive from the SEC or its staff including with respect to the Offer Documents promptly after the receipt number of such comments shares of Company Common Stock that have been validly tendered and to cooperate not validly withdrawn in accordance with the terms of the Offer and, on the Company’s written request, provide (or cause its transfer agent to provide) to the Company as soon as reasonably practicable with the most recent report in its possession from the Depository Agent detailing the number of shares of Company Common Stock that have been validly tendered and its counsel not validly withdrawn in responding to any such commentsaccordance with the terms of the Offer.
Appears in 1 contract
Samples: Merger Agreement (PhenomeX Inc.)
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that -------- ---- this Agreement shall not have been terminated in accordance with Article VIII Section 8.1 and so long as none of the events or circumstances set forth in Exhibit Annex A hereto shall have occurredoccurred or be existing, as promptly as practicable but in no event not later than seven (7) the fifth business days following day from the date of public announcement by Parent and the Company of the Offer and Mergerexecution of this Agreement, Sub shall, and Parent Purchaser shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act")), the Offer at (i) a price of $50.00 per Share net to the Offer Priceseller in cash and (ii) a price of $81.25 per Warrant net to the seller in cash. The obligation of Sub to, and of Parent Purchaser to cause Sub to, consummate the Offer and Offer, to accept for payment, payment and to pay for, for any Shares Securities tendered and not withdrawn pursuant to the Offer shall be subject to the those conditions set forth in Exhibit Annex A (and the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The other conditions to the Offer set forth in Exhibit A are for this Agreement. Purchaser expressly reserves the right, in its sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless discretion, to waive any such condition provided -------- that, without the consent of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Company, Parent or Sub that constitutes a breach of this AgreementPurchaser shall not waive ---- the Minimum Condition (as defined in Annex A). The initial expiration date of the Offer shall be the twentieth (20th) 20th business day following the commencement of the Offer. The Offer Price shall be net to (determined using Rule 14d-1(c)(6) under the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub Exchange Act).
(b) Purchaser expressly reserve reserves the right, in their its sole discretion, to modify and make changes to the terms and conditions of the Offer, except that, provided that -------- ---- without the prior consent of the Company, Sub shall not no modification or change may be made which (i) reduce decreases the number of Shares subject to consideration payable in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change changes the form of consideration payable in the Offer (other than by adding consideration); or , (viiii) amend any other material terms changes the Minimum Condition, (iv) decreases the maximum number of the Offer in a manner adverse Securities sought pursuant to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of (v) adversely changes the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or (vi) imposes additional conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless other than in respect of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant any consideration which is payable in addition to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent Share Price and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"Warrant Price), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares or (vii) except as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.in
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement, and provided this Agreement shall not have been terminated in accordance with Article VIII Section 10.1 hereof and none that nothing shall have occurred that would result in a failure to satisfy any of the events conditions set forth in Exhibit A shall have occurredis paragraphs (a) and (b) of Annex I hereto, Merger Sub shall, as promptly as practicable after the date hereof, but in no event later than seven (7) five business days following the date of public announcement by Parent and the Company of the Offer and Mergerexecution of this Agreement, Sub shall, and Parent shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act1934 ACT"), ) the Offer at the Offer Price. The obligation a price of Sub to$2.75 per Share, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and less any required transfer and withholding taxes. The Offer shall be subject to the conditions of the Offer. Parent condition that there shall be validly tendered (and Sub expressly reserve the right, not withdrawn) in their sole discretion, to modify accordance with the terms of the Offer, except thatprior to the expiration date of the Offer, at least that number of Shares (not including Shares tendered by Parent, Merger Sub or any affiliate of Parent), which is the smallest number of Shares that represents a majority of the outstanding Shares (excluding for purposes of this calculation all Shares owned by Parent, Merger Sub or any affiliate of Parent and any Shares held in Intek employee stock plans that cannot be tendered pursuant to the terms of those plans) (the "MINIMUM CONDITION"), and to the other conditions set forth herein and in Annex I hereto. Notwithstanding the foregoing, Merger Sub expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms or conditions of the Offer; provided, however, that without the prior written consent of the Company, Merger Sub shall not (i) reduce waive the number of Shares subject to the Offer, (ii) reduce Minimum Condition or make any change in the Offer Pricethat changes the form of the Offer or of the consideration or decreases the price per share, (iii) impose any material except as provided in Section 2.7 hereof, or that imposes conditions to the Offer other than the Offer Conditions in addition to those set forth herein and in Annex I hereto, or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner that is otherwise materially adverse to the holders of SharesShares (other than Parent and its affiliates). Notwithstanding The Offer shall expire at midnight on the foregoingexpiration date. The initial scheduled expiration date of the Offer shall be the date that is 20 business days following the date of commencement of the Offer. If on any scheduled expiration date of the Offer all conditions to the Offer shall not have been satisfied or waived, Merger Sub mayshall extend the Offer from time to time until such conditions have been satisfied or waived; provided that Merger Sub shall have no obligation to extend the Offer beyond the date 60 days after commencement of the Offer, nor shall it have the right to extend the Offer beyond the date 60 days after commencement of the Offer without the prior written consent of the Company (except pursuant to the next sentence). If on any scheduled expiration date of the Offer all conditions to the Offer (including the Minimum Condition) shall have been satisfied but the sum of (i) the number of Shares tendered (and not withdrawn) pursuant to the Offer plus (ii) the number of Shares held by Parent, Merger Sub or any other affiliate of Parent that have not been tendered pursuant to the Offer, including Shares issuable to any of them upon conversion of Series A Preferred Shares and convertible debt of the Company held by any of them, represent less than 90% of the outstanding Shares on a fully-diluted basis (except that unexercised Options shall not be treated as outstanding for this purpose), Merger Sub shall also have the right to extend the Offer from time to time without the consent of the Company (ifor not more than an aggregate of 10 business days) extend in order to permit Merger Sub to solicit the Offer, if at the scheduled or extended expiration date tender of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable additional Shares pursuant to the Offer; (iii) extend . Notwithstanding anything to the contrary set forth in this Agreement or in Annex I, if the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders is extended in accordance with Section 253 the foregoing following satisfaction of the General Corporation Law Minimum Condition, the Minimum Condition shall be deemed to remain satisfied regardless of any withdrawal of previously tendered shares during the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereofextension period. Subject to the foregoing and applicable law and upon to the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause it to, accept for paymentagrees to pay, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as reasonably practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 expiration of the Exchange ActOffer, the "Acceptance Date") for all shares of Company Common Stock validly Shares properly tendered and not withdrawn pursuant to the OfferOffer that Merger Sub is obligated to purchase.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII X and none of provided further that the events set forth Company is prepared (in Exhibit A shall have occurredaccordance with Section 1.2) to file the Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable after the date of this Agreement, but in no any event not later than seven 15 Business Days from the date of this Agreement, Merger Sub shall (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Merger Sub to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer at the Offer Price. Offer.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, payment and pay for, for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A to: (the "Offer Conditions"i) (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided there being validly tendered in the Offer Conditions(and not validly withdrawn) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1prior
1. The conditions Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be paid net to the seller in cash, without interest thereoninterest, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose less any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferTax withholding.
(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 and Merger Sub reserve the right (in their sole discretion) to waive, in whole or in part, any Offer Condition (other than the Minimum Condition), to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not, and Parent shall not on Merger Sub's behalf, (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Conditions Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) add to the conditions set forth on Exhibit A or modify or change any Offer Condition in a manner adverse to any shareholders of the Company, (v) except as otherwise provided in this Section 1.1, extend or otherwise change the Expiration Time, or (vi) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse to any shareholders of the Company.
(d) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with this Agreement or the Parties shall otherwise agree, the Offer shall expire at midnight, New York City time, on the later of (i) January 4, 2016 and (ii) the date that is 20 business days (calculated as set forth in Exhibit A. On Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, or such subsequent time to which the expiration of the Offer is extended in accordance with this Agreement, the "Expiration Time").
(e) Subject to the terms and conditions of this Agreement, unless this Agreement has been terminated in accordance with Article X, (i) Merger Sub may, and at the request of the Company shall (and Parent shall cause Merger Sub to), extend the Offer on one or more occasions for periods of up to 20 Business Days per extension (with the length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) up to and including the Termination Date, if at any then-scheduled Expiration Time any Offer Condition has not been satisfied or waived and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods if required by any Law applicable to the Offer; provided, however, that in no event shall Merger Sub be required to, nor shall Parent be required to cause Merger Sub to, extend the Offer beyond the Termination Date.
(f) Following expiration of the Offer, Merger Sub (or Parent on its behalf) may, in its sole discretion, provide a subsequent offering period or one or more extensions thereof (a "Subsequent Offering Period") in accordance with Rule 14d-11 of the Exchange Act if, as of the commencement of such period, there shall not have been validly tendered (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), and not properly withdrawn pursuant to the Offer, that number of Shares necessary to permit the Merger to be effected without a meeting of shareholders of the Company in accordance with Section 321(d)(1)(ii) of the PBCL. Nothing contained in this Section 1.1 shall affect any termination rights in Article X.
(g) Subject to the terms and conditions of this Agreement and the satisfaction or waiver of the Offer Conditions prior to the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, (i) promptly after the date of the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.1), accept for payment all Shares that have been validly tendered and not properly withdrawn pursuant to the Offer (such acceptance for payment of Shares following the satisfaction or waiver of the Offer Conditions as of the Expiration Time is referred to in this Agreement as the "Offer Closing"), which acceptance shall be by written notice to the Paying Agent, (ii) on the date of the Offer Closing, deposit or cause to be deposited with the Paying Agent cash in U.S. dollars sufficient to pay the aggregate Offer Price for such accepted Shares and (iii) cause the Paying Agent to pay the Offer Price (subject to any withholding of Taxes pursuant to Section 3.6) for all Shares so accepted as promptly as practicable after the Expiration Time. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any Shares that Merger Sub becomes obligated to accept for payment pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub's obligations under this Agreement.
(h) Merger Sub shall not terminate the Offer prior to any then-scheduled Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article X. If the Offer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, or this Agreement is terminated pursuant to Article X, prior to the acceptance for payment of the Shares tendered in the Offer, Merger Sub shall, and shall cause any depository acting on behalf of Merger Sub to, promptly (and in any event within three Business Days) return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(i) 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 or amendments and exhibits thereto, the "Schedule TO") with respect to the Offer). The Schedule TO shall include, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a related 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 or amendments thereto, the "Offer Documents"), and . The Company shall promptly furnish in writing to Parent and Merger Sub all information concerning the Company and its Subsidiaries that may be required by applicable Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. Parent and Merger Sub shall take all steps reasonably necessary to cause to be disseminated the Offer Documents to holders be filed with the SEC and disseminated to the shareholders of Shares the Company, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer DocumentsMerger Sub, on the date first publishedone hand, sent or given to and the Company's stockholders, shall not contain any untrue statement of a material fact or omit on the other hand, agree to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and respect or as otherwise required by applicable Law. Parent and Merger Sub further agree to take all steps reasonably necessary to cause the Schedule TOOffer Documents, as so correctedcorrected (if applicable), to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders the shareholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment upon the on such Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. response, and Parent and Merger Sub agree to provide the Company shall give reasonable and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding good faith consideration to any such comments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 8.01 and none nothing shall have occurred that would render any of the events conditions set forth in Exhibit Annex A shall have occurredhereto incapable of being satisfied, as promptly as practicable (but in no event later than seven that five (75) business days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement), Sub shall, and Parent Purchaser shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation of Sub to, and of Parent ) an offer to cause Sub to, consummate the Offer and accept purchase for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A cash (the "Offer ConditionsOffer") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless all of the circumstances giving rise to any such conditions issued and outstanding shares of Common Stock (other than as the "Shares") at a result price of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be $8.79 per Share, net to the seller in cash, without interest thereoninterest. For purposes of this Agreement, upon the terms term "Transaction Consideration" shall mean $8.79 per Share in cash or any higher price as shall be paid in respect of the Shares in the Offer. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered shall be subject to only the conditions set forth in Annex A hereto (any or all of which may, subject to the conditions of provisions hereof, be waived by Parent or Purchaser, subject to applicable law). Without the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the prior written consent of the Company, Sub Purchaser shall not (i) reduce decrease the Transaction Consideration with respect to any Shares, (ii) decrease the number of Shares subject to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (iv) add to or change the conditions to the Offer set forth in Annex A, (other than adding consideration); v) waive the Minimum Condition (as defined in Annex A) or (vi) amend make any other material change in the terms or conditions of the Offer. Parent and Purchaser expressly reserve the right to waive any condition (other than the Minimum Condition) specified in Annex A or to increase the Transaction Consideration. Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, if the conditions set forth in Annex A are not satisfied or, to the extent permitted hereby, waived by Purchaser as of the date the Offer would otherwise have expired, then, except to the extent that such conditions are incapable of being satisfied, Purchaser will extend the Offer from time to time until the earlier of the consummation of the Offer in a manner adverse to or the holders of Shares. Notwithstanding date which is twenty (20) business days from the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended original expiration date of the Offer any (such date, the "Final Date"). Purchaser shall, subject to the terms and conditions of the Offer Conditions shall Offer, accept for payment Shares validly tendered and not be satisfied or waived, until such time withdrawn as such conditions are satisfied or waivedsoon as it is legally permitted to do so under applicable law; provided, however, that notwithstanding anything herein Purchaser shall be entitled to extend the contrary, Offer one or more times beyond the Final Date for an aggregate period of up to ten (10) business days if any of on the Final Date the conditions to the Offer are not set forth in Annex A have been satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if but there shall not have been tendered a sufficient that number of Shares to enable the Merger to be effected without a meeting which would equal at least ninety percent (90%) of the Company's stockholders in accordance with Section 253 issued and then outstanding Shares. Purchaser shall be obligated to consummate the Offer immediately upon reaching such ninety percent (90%) threshold. Such extended date shall then be the Final Date for purposes of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the this Agreement. The Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shallagrees that it will not tender, and Parent shall cause will not permit any of its subsidiaries to tender, any Shares held by it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to or any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn subsidiary pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurred, as As promptly as practicable after the date of this Agreement but in no event later than seven December 29, 2020, Merger Sub shall (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Merger Sub to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended Act) the Offer.
(together b) In accordance with the rules terms and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation conditions of Sub tothis Agreement, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant subject only to the Offer shall be subject satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Exhibit A Annex I (collectively, the “Offer Conditions”), Merger Sub shall (and Parent shall cause Merger Sub to), at or as promptly as practicable following the Expiration Time, irrevocably accept for payment (the "time of acceptance for payment, the “Offer Conditions"Acceptance Time”) (any of which may be waived in whole and, at or in part by Parent and Sub in their sole discretion, except as expressly provided in promptly as practicable following the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement Acceptance Time (but in any event within three Business Days (calculated as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are Rule 14d-1(g)(3) under the Exchange Act) thereafter) pay for the sole benefit of Parent all Shares validly tendered and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise not properly withdrawn pursuant to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the rightshall provide or cause to be provided to Merger Sub, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce at the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in Acceptance Time and on a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if timely basis at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Actall times thereafter, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(bc) The Offer shall be made by means of an offer to purchase (the "“Offer to Purchase"”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise expressly provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose any conditions to the Offer other than the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions set forth in Exhibit A. On a manner that makes such Offer Condition more difficult to satisfy, (F) amend, modify or waive the Minimum Condition, (G) except as otherwise required or expressly permitted by Section 2.01(e), extend or otherwise change the Expiration Time, (H) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, or (I) otherwise amend, modify or supplement any of the other material terms of the Offer in a manner that makes the Offer Conditions more difficult to satisfy, except for actions described in any of clauses (A) through (I) that are (1) expressly required by this Agreement, (2) required by Law or (3) taken in response to written comments or questions received from the SEC. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VIII.
(d) The Offer shall expire at midnight (New York time) (i.e., one minute after 11:59 p.m. (New York time)) on the date that is 30 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 2.01(e), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time as follows:
(i) If, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of up to 10 Business Days each (each such increment to end at 5:00 p.m., New York time, on the last Business Day of such increment) in order to permit the satisfaction of such Offer Condition(s); and
(ii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff; provided, however, that, in each case, in no event shall Merger Sub be required to extend the Offer beyond the earliest to occur of (x) the termination of this Agreement pursuant to Article VIII and (y) the End Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 2.01(f) shall be construed to permit the Company or any other Person to take any action except to the extent consistent with, and not otherwise limited or prohibited by, the terms and conditions of this Agreement
(g) In the event that this Agreement is terminated in accordance with Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) as promptly as practicable (and in any event within 24 hours of such termination) irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on behalf of Parent or Merger Sub to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(h) As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all exhibits, amendments and supplements or amendments thereto, the "“Schedule TO"”) with respect to the Offer, which shall that will contain as an exhibit or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement (such the Schedule TO and the TO, together with all documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsShares. Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Sub further agree shall use reasonable efforts to take all steps necessary to promptly cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub or Parent’s counsel any information concerning the Company and the Company’s Subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents. The Company and its counsel shall be given reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub agree to provide the Company and its counsel with any comments (including a summary 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 comments. Each of Parent and to cooperate with Merger Sub shall give the Company and its counsel a reasonable opportunity to participate in responding the response to any comments of the SEC or its staff with respect to the Offer Documents and shall respond promptly to any such comments.
(i) Parent, Merger Sub and the Paying Agent with respect to the Offer shall be entitled to deduct and withhold from the Offer Price payable pursuant to the Offer such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, the U.S. Treasury Regulations promulgated thereunder, or any provision of state, local or non-U.S. Tax Law. To the extent amounts are so withheld and paid over to the appropriate Taxing Authority, the withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII IX and none of the events set forth in Exhibit paragraphs (i), (ii), (iii), (iv) and (v) of Annex A hereto shall have occurred, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Merger Sub shall, and Parent shall cause Merger Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer at as promptly as practicable following the Offer Pricedate hereof and in any event within thirteen (13) Business Days after the date hereof. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, and pay for, any Shares payment shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer and to pay the Offer Price for each such tendered and not subsequently withdrawn share shall be subject only to the satisfaction or waiver by Parent or Merger Sub of the conditions set forth in Exhibit Annex A (such conditions, as they may be amended in accordance with this Agreement, the "“Tender Offer Conditions") (any ”). Parent on behalf of which may be waived Merger Sub expressly reserves the right from time to time, subject to Section 2.1(b), to waive in whole or in part by Parent and Sub in their sole discretionany such condition, except as expressly provided to increase the Offer Price payable in the Offer Conditions) Offer, and to make any other changes to the rights terms and conditions of Parent and the Offer; provided, however, that without the prior written consent of the Company, Merger Sub shall not (i) amend or waive satisfaction of the Minimum Condition (as defined in Annex A), (ii) change the form of consideration to terminate this Agreement as provided be paid pursuant to the Offer, (iii) decrease the Offer Price payable in Section 8.1. The the Offer, (iv) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose conditions to the Offer that are in addition to those set forth in Exhibit Annex A are for hereto, (vi) make any change in the sole benefit Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (vi) shall not limit the ability of Parent and or Merger Sub and may be asserted to extend the Expiration Date as required by Parent and Sub regardless of Section 2.1(b); (vii) amend or modify the circumstances giving rise to any such conditions Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition), or (viii) amend or modify any other term of the Offer in any manner materially adverse to the holders of shares of Company Common Stock in their capacities as a result holders of any action or inaction shares of Parent or Sub that constitutes a breach of this Agreement). Company Common Stock.
(b) The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement Business Day after the date that the Offer is commenced (determined pursuant to Rule 14d-1(g)(3) and Rule 14d-2 under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer. The Offer Price shall be net is extended pursuant to the seller and in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify accordance with the terms of this Agreement, the Offer, except that, without the consent of the Company, “Expiration Date”). Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to terminate or withdraw the Offer other than in connection with the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by effective termination of this Agreement); (iv) except as provided Agreement in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Sharesaccordance with Article IX hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with Article IX hereof, Merger Sub mayshall, without the consent of the Company and Parent shall cause Merger Sub to, (i) extend the OfferExpiration Date if, if at the on any then scheduled or extended expiration date of the Offer Expiration Date, any of the Tender Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are is not satisfied or waived on any scheduled expiration date by Merger Sub, for such periods of the Offer, Parent and Sub up to five (5) Business Days at a time (or such other longer period as shall be required consented to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied in writing by the Outside Date; providedCompany) as Merger Sub may deem reasonably necessary, furtherbut, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period except as required by any applicable Law, rule, regulation, interpretation or position of the Securities and Exchange Commission (NASDAQ, the "SEC") SEC or the staff thereof of the SEC (the “SEC Staff”) applicable to the Offer (including in connection with an increase in the Offer Price), in no event may the Expiration Date be extended pursuant to this clause (i) to a date later than the Termination Date and (ii) extend the Expiration Date for any period required by any applicable Law, rule, regulation, interpretation or position of the NASDAQ, the SEC or the SEC Staff applicable to the Offer; (iii) , including in connection with an increase in the Offer Price. Except as expressly provided in this Section 2.1(b), Merger Sub shall not extend the Offer for any reason on one if all of the Tender Offer Conditions are satisfied or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be waived and it is permitted under clauses applicable Law to accept for payment and pay for validly tendered shares of Company Common Stock that are not validly withdrawn. Nothing in this Section 2.1(b) shall affect any termination rights contained in Article IX hereof.
(ic) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant Subject to the terms hereof. Subject and conditions set forth in this Agreement and to the foregoing and applicable law and upon the terms and subject to the conditions satisfaction or waiver of the OfferTender Offer Conditions, Merger Sub shall, and Parent shall cause it to, (i) promptly after the Expiration Date, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment Tax pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"Section 2.1(e)) all shares of Company Common Stock that have been validly tendered and not properly withdrawn pursuant to the Offer.
Offer (b) The Offer the date of acceptance for payment, the “Acceptance Date”), which acceptance shall be made by means written notice to the Paying Agent, (ii) promptly after the Acceptance Date, but no later than the close of an offer business, New York City time, on the third Business Day thereafter, deposit or cause to purchase be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Offer Price for such accepted shares of Company 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. In the event that the Acceptance Date occurs, but the number of shares of Company Common Stock that have been validly tendered and not properly withdrawn in the Offer, together with any shares of Company Common Stock then owned by Parent, assuming exercise of the Top-Up Option in full, is less than ninety percent (90%) of the outstanding shares of Company Common Stock on a fully diluted basis, Merger Sub may, in its sole discretion, commence a “subsequent offering period” (in accordance with Rule 14d-11 promulgated under the Exchange Act) for a number of days to be determined by Parent but not less than three (3) nor more than twenty (20) Business Days to acquire additional outstanding shares of Company Common Stock. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for (after giving effect to any required withholding Tax) all additional shares of Company Common Stock validly tendered during such subsequent offering period. Parent shall provide or cause to be provided to Merger Sub on a timely basis the consideration 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 Purchase") 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 Tender Offer Conditions set forth is referred to in Exhibit A. this Agreement as the “Offer Closing.”
(d) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements or amendments thereto, including the exhibits thereto, the "“Schedule TO"”) with respect to the Offer, which shall contain as an exhibit or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and forms of notice of guaranteed delivery and any related summary advertisement (the Schedule TO, 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 madeother documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "“Offer Documents"”), and Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to holders of Shares shares of Company Common Stock as and to the extent required by applicable federal securities lawsLaw. Parent and Sub agree that the The Offer Documents shall comply in all material respects with the Exchange Act requirements under applicable Law. Each of Parent and the Offer DocumentsMerger Sub, on the date first publishedone hand, sent or given to and 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 on the statements thereinother hand, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable 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 2.1(d). Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing such documents (or amendments or supplements thereto) being filed with the SEC or dissemination disseminated to the stockholders holders of the Companyshares of Company Common Stock. Parent and Merger Sub agree to shall provide the Company and its counsel with any comments or communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from the SEC or its staff the SEC Staff with respect to the Offer Documents promptly after the receipt of such comments or communications and to cooperate with shall provide the Company and its counsel with a reasonable opportunity to participate in responding the response of Parent or Merger Sub to such comments or communications. Parent and Merger Sub shall give reasonable and good faith consideration to suggestions of the Company or its counsel in response to such comments or communications. In the event that Parent or Merger Sub receives any comments from the SEC or the SEC Staff with respect to the Offer Documents, each shall use commercially reasonable efforts to respond promptly to such comments and take all other actions necessary to resolve the issues raised therein.
(e) Parent, Merger Sub or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such commentsamounts as Parent, Merger Sub or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate Taxing Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Merger Sub or the Paying Agent.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredSection 8.01, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Merger Sub shall, and Parent shall cause Merger Sub to, commenceas promptly as practicable after the Agreement Date (and in any event no later than ten (10) Business Days after the date of the initial public announcement of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "“Exchange Act"”), ) the Offer to purchase any and all of the outstanding Shares at the Offer Price. .
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, payment and pay for, for any Shares tendered and not withdrawn pursuant to the Offer shall be is subject only to the satisfaction or waiver (as provided in Section 1.01(c) below) of the conditions set forth in Exhibit A Annex I (the "“Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement”). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) as soon as practicable after the Expiration Date (as defined in Section 1.01(e) below) and in compliance with applicable Law (as defined in Section 4.12(a) below). The acceptance for payment of Shares 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 or prior to the date of the Offer Closing funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and this Agreement.
(c) Parent and Merger Sub expressly reserve the right, in their sole discretion, right to modify the terms waive any of the Offer, except that, without Offer Conditions other than the Minimum Condition (which Minimum Condition may be waived by Parent and Merger Sub only with the prior written consent of the Company), and to increase the Offer Price or to make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided that, unless otherwise expressly provided in this Agreement or previously approved by the Company in writing, Parent and Merger Sub shall not not: (i) reduce the number of Shares subject to the Offer, (ii) reduce decrease the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Price or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions or amend any Offer Condition, (other than adding consideration); iv) waive or amend the Minimum Condition, (viv) amend any other material terms term of the Offer in a manner that is adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company or (ivi) extend the Offer, if at Expiration Date except as required or permitted by Section 1.01(e).
(d) On the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waivedis commenced, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which Tender Offer Statement shall contain as include an exhibit or incorporate by reference the Offer offer to Purchase and a related purchase, letter of transmittal and transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to the holders of Shares as and to the extent required by applicable federal securities lawsLaw. Merger Sub shall, and Parent and shall cause Merger Sub agree that to, cause the Offer Documents shall to comply as to form in all material respects with the Exchange Act requirements of applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Offer Documents, on the date first published, sent Company that may be required by applicable Law 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 is made reasonably requested by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference be set forth in the Offer Documents. Each of Parent, Sub and the Company parties agrees to promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any written comments (and shall orally describe 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 Offer Documents promptly after the receipt of such comments and comments. Prior to cooperate the filing of the Offer Documents (including any amendment or supplement thereto) with the Company and its counsel in SEC or dissemination thereof to the holders of Shares, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any comments provided by the Company. Parent and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(e) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 1.01(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Section 1.01(e) or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 1.01(e), the “Expiration Date”). Notwithstanding the foregoing, (i) if, on the then-effective Expiration Date, any of the Offer Conditions have not been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of not more than ten (10) Business Days (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree, in order to permit the satisfaction of the Offer Conditions (it being understood, for the avoidance of doubt, that the Offer shall not be extended pursuant to this clause (i) if all Offer Conditions have been satisfied or waived), and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or necessary to resolve any comments of the SEC or its staff applicable to the Offer or the Offer Documents; provided that (A) in the case of clauses (i) and (ii), Merger Sub shall not in any event be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the Outside Date (as defined in Section 8.01(c) below) and (B) in the case of clause (i), in the event that each Offer Condition (other than the Minimum Condition) shall have been satisfied or waived as of any then-effective Expiration Date and the Minimum Condition shall not have been satisfied as of such Expiration Date, then Merger Sub shall not in any event be required to extend the Offer pursuant to clause (i) beyond the date that is twenty (20) business days after such Expiration Date, but may in its sole discretion elect to do so, subject to Section 1.01(e)(A). Nothing in this Section 1.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Company, Parent or Merger Sub to terminate this Agreement pursuant to Section 8.01. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within one (1) Business Day of such termination) terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, prior to the acceptance for payment of Shares tendered in the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (Zeneca, Inc.)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Article VIII Section 9.1 and (ii) none of the events set forth in Exhibit Annex A hereto that would entitle Parent and Merger Subsidiary to fail to consummate the Offer shall have occurredoccurred and be continuing (and shall not have been waived by Parent), as promptly as practicable but in no event later than seven practicable, Merger Subsidiary shall (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub Merger Subsidiary to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act")), the Offer for any and all of the Shares, at the Offer Price. The obligation of Sub to, Merger Subsidiary to accept for payment and to pay for any Shares tendered (and the obligation of Parent to cause Sub to, consummate the Offer and Merger Subsidiary to accept for payment, payment and to pay for, for any Shares tendered) shall be subject only to (i) the condition that at least 80% of the outstanding Shares be validly tendered and not withdrawn pursuant (the "Minimum Condition"), and (ii) the other conditions set forth in Annex A. Merger Subsidiary expressly reserves the right to increase the Offer shall Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, no change may be subject made that (i) decreases the Offer Price or the Cash Portion or the Stock Portion thereof, (ii) changes the form or combination of consideration to be paid in the Offer, (iii) reduces the number of Shares to be purchased in the Offer, (iv) amends the conditions set forth in Exhibit Annex A to broaden the scope of such conditions, add any additional conditions, or otherwise adversely affect the holders of Shares, (the "Offer Conditions"v) (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in extends the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement except as provided in Section 8.11.1(b), or (vi) amends or waives the Minimum Condition. The It is agreed that the conditions to the Offer set forth in Exhibit Annex A are for the sole benefit of Parent and Sub Merger Subsidiary and may be asserted waived by Parent and Sub regardless of the circumstances giving rise Merger Subsidiary, in whole or in part at any time and from time to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the righttime, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Minimum Condition, as to which prior written Company approval is required. The failure by Parent and Merger Subsidiary at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or modify its Subsidiary will be tendered in the Offer.
(b) Subject to the terms and conditions thereof, the Offer Conditions shall expire at midnight, New York City time, on the date that is twenty (other than to waive any Offer Conditions to 20) business days after the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend date the Offer beyond any scheduled expiration dateis commenced; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoingprovided, Sub mayhowever, that without the consent of the Company Board (the "Company Board"), Merger Subsidiary may (i) from time to time extend the Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer Conditions shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are but not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Datetermination of this Agreement pursuant to Article IX; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; or (iii) extend include a subsequent offering period (as such term is defined in Rule 14d-1 under the Exchange Act) to the Offer for any reason on one or more occasions for an aggregate a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereofdays. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Sub shall, Merger Subsidiary shall (and Parent shall cause it Merger Subsidiary to, ) accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer that Merger Subsidiary becomes obligated to purchase (the "Offer to Purchase") subject accept for payment and pay for pursuant to the Offer Conditions set forth Offer, as promptly as practicable after the expiration of the Offer. No fraction of a share of Parent Common Stock will be issued in Exhibit A. On connection with the date payment of commencement the Stock Portion upon consummation of the Offer, but in lieu thereof each tendering shareholder who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) in the Offer shall receive from Parent an amount of cash (rounded to the nearest whole cent), without interest, equal to the product obtained by multiplying such fraction by the closing price of one (1) share of Parent Common Stock on the first date Merger Subsidiary accepts Shares for exchange in the Offer, as reported on the Nasdaq National Market ("Nasdaq"). With respect to any such Shares the Cash Portion shall be net to the seller thereof in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller.
(c) As soon as practicable after the date of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S-4 to register the offer and sale of Parent Common Stock pursuant to the Offer (the "Registration Statement"). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) promulgated under the Exchange Act (the "Preliminary Prospectus"). As soon as practicable on the date the Offer is commenced, Parent and Sub Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements or amendments thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer, which Offer and shall cause the Offer Documents to be disseminated to holders of Shares. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase Preliminary Prospectus (or portions thereof) and a forms of the related letter of transmittal and summary advertisement advertisement, if any. Parent and Merger Subsidiary agree that they shall cause the Schedule TO, the Preliminary Prospectus and all amendments or supplements thereto (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, constitute the "Offer Documents"), and Parent and Sub shall cause ) to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws (as defined in Section 4.1(c)). Parent and Merger Subsidiary further agree that the Offer Documents, on the date first published, sent or given to the Company's stockholdersshareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant representation or warranty is made by Parent or Sub Merger Subsidiary with respect to information supplied by the Company or any of its stockholders shareholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Sub Merger Subsidiary and the Company agrees promptly to correct promptly any information provided by it for use in the Registration Statement or the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Sub Merger Subsidiary further agree to take all steps necessary to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Sharesthe Company's shareholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon on the Schedule TO, the Registration Statement and the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub Merger Subsidiary agree to provide in writing to the Company and its counsel with any comments Parent, Sub Merger Subsidiary or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with the shall provide Company and its counsel with a reasonable opportunity to participate in responding the response of Parent or Merger Subsidiary to any such comments. Parent shall use all reasonable efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of Parent Common Stock pursuant to the Offer. Following the time the S-4 is declared effective, Parent shall file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act.
Appears in 1 contract
Samples: Merger Agreement (Carescience Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII IX and none of the events set forth in Exhibit Annex A hereto shall have occurredoccurred and be existing, as promptly as practicable but in no event later than seven reasonably practicable, Purchaser shall commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause 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"), ) the Offer to acquire all the outstanding Shares at the Offer Price. The obligation a price of Sub to$19.50 per Share, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, subject to applicable withholding of taxes, without interest thereon(such price, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, or such higher price per Share as may be paid in their sole discretion, to modify the terms of the Offer, except that, without being referred to herein as the consent of the Company, Sub shall not "Offer Price"). Subject to (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms satisfaction of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) Minimum Condition and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting satisfaction or waiver of the Company's stockholders other conditions set forth in Annex A hereto, Purchaser shall consummate the Offer in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the its terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment Shares validly tendered pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant as soon as Purchaser is legally permitted to the Offer.
(b) do so under applicable law. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") and shall be subject to the Offer Conditions Minimum Condition and the other conditions set forth in Exhibit A. On Annex A hereto, and shall reflect, as appropriate, the date other terms set forth in this Agreement. Parent and Purchaser expressly reserve the right, in their sole discretion, subject to compliance with the Exchange Act, to waive any such condition and to make any other changes in the terms and conditions of commencement the Offer; provided, however, that Parent and Purchaser shall not (i) amend or waive the Minimum Condition, (ii) decrease the Offer Price, (iii) decrease the maximum number of Shares to be purchased in the Offer or (iv) amend any other term or condition of the Offer in any manner or impose any term or condition that is adverse to the holders of the Shares without the written consent of the Company (such consent to be authorized by the Company Board or a duly authorized committee thereof). It is agreed that the terms and conditions of the Offer, including, but not limited to, the conditions set forth in Annex A hereto, are for the benefit of Parent and Sub Purchaser and may be asserted by Parent and Purchaser regardless of the circumstances giving rise to any such condition.
(b) The initial expiration date of the Offer shall file with be the SEC a Tender date which is 20 business days after the commencement date of the Offer. Notwithstanding the foregoing, in the event that any condition to the Offer Statement on Schedule TO (together with all supplements set forth in Annex A hereto shall not have been satisfied or amendments thereto, waived at the "Schedule TO") with respect to scheduled or any extended expiration date of the Offer, which Purchaser shall contain as an exhibit or incorporate (unless otherwise notified by reference 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 any supplements or amendments thereto, the "Offer Documents"Company), and Purchaser shall otherwise be entitled to, extend the expiration date of the Offer two times in increments of up to 10 business days each (unless otherwise agreed by Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders) until the earliest to occur of (x) the satisfaction or waiver of each such condition, (y) the termination of this Agreement in accordance with its terms and (z) either November 13, 2000, if the condition set forth in clause (i) of the first paragraph of Annex A shall not contain have been satisfied, or October 16, 2000 if any untrue statement of a material fact or omit to state any material fact other condition set forth in Annex A hereto shall not have been satisfied; provided, however, that Purchaser shall not be required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.extend
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredVIII, as promptly as practicable but in no event then (i) not later than seven the first Business Day (7) business days following the public announcement by Parent and the Company for purposes of the Offer and Mergerthis Agreement, Sub shall, and Parent shall cause Sub to, commence, within such term having the meaning of given in Rule 14d-2 14d-1 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT")) after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement, and (ii) Purchaser shall, as promptly as practicable, but in no event later than five Business Days after the date of such public announcement, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act"), the Offer to purchase all of the issued and outstanding Shares at a price per share of $17.00, net to the seller in cash. The Offer shall be made pursuant to the Offer Priceto Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing the terms and conditions set forth in this Agreement. The obligation of Sub Purchaser to, and of Parent to cause Sub Purchaser to, commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any Shares properly tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer ConditionsOFFER CONDITIONS") (any of which may be waived in whole or in part by Parent and Sub Purchaser in their its sole discretion, except as expressly provided in provided, however, that Purchaser shall not waive the Offer Conditions) and to Minimum Condition without the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless prior written consent of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this AgreementCompany). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub Purchaser expressly reserve reserves the right, in their sole discretionsubject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Sub neither Parent nor Purchaser shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions add to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Conditions, (iv) except as provided in the next sentence, extend change the Offer beyond any scheduled expiration date; date of the Offer, (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend amend, alter, add or waive any other material terms term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub which shall initially be required to extend 20 Business Days after the commencement date of the Offer, all Offer until such condition or conditions are Conditions have not been satisfied or waived unless such condition or conditions could not reasonably be expected waived, Purchaser may, without the consent of the Company, and at the request of the Company shall, from time to be satisfied by the Outside Date; providedtime, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond Offer, and Purchaser may, without the Outside Date; (ii) consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the SEC staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject only to the conditions of the Offerset forth in Exhibit A, Sub Purchaser shall, and Parent shall cause it Purchaser to, as soon as practicable after the expiration of the Offer, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn that Purchaser becomes obligated to accept for payment pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all supplements as supplemented or amendments theretoamended from time to time, the "SCHEDULE 14D-1") and Schedule TO13E-3 (as supplemented or amended from time to time, the "SCHEDULE 13E-3") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase purchase and a related letter of transmittal and summary advertisement (such Schedule TO 14D-1, the Schedule 13E-3, and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub Purchaser 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, at the time 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 representation or warranty is made by Parent or Sub Purchaser with respect to written information supplied by the Company or any of its stockholders (other than the Continuing Stockholder) specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Purchaser and the Company each agrees promptly to correct promptly any written information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule TO, 14D-1 and Schedule 13E-3 as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company Company, the Special Committee and its their respective counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company, and Parent and Purchaser shall consider such comments in good faith. Parent and Sub Purchaser agree to provide the Company Company, the Special Committee and its their respective counsel any comments Parent, Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments comments.
(c) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds sufficient to accept for payment, and pay for, any and all Shares that Purchaser becomes obligated to cooperate accept for payment, and pay for, pursuant to the Offer.
(d) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as may be required to be deducted and withheld with respect to 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 Purchaser 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 the Company proof of such payment and its counsel in responding to any a copy of all such commentstax returns and reports.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurred, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation obligations of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, payment and to pay for, for any Shares shares of Common Stock validly tendered and not withdrawn pursuant prior to the expiration of the Offer shall be subject only to the conditions set forth in Exhibit A (the "Tender Offer Conditions") (, any of which may be waived in whole or in part by Parent and or Sub; provided, however, that neither Parent or Sub shall waive the Minimum Condition (as defined in their sole discretion, except as expressly provided in Annex A) without the Offer Conditions) and to prior written consent of the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1Company. The conditions to the Tender Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Tender Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cashConditions and, without interest thereon, upon the terms and subject to the conditions of the Offerimmediately preceding sentence, may be waived by Parent and Sub in whole or in part. Parent and Sub expressly reserve the right, in their sole discretion, right to modify the terms of the Offer, except thatincluding without limitation to extend the Offer beyond any scheduled expiration date; provided, however, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions add to the Offer other than the Tender Offer Conditions or otherwise modify the Tender Offer Conditions (other than to waive any Offer Conditions in a manner that is adverse to the extent permitted by this Agreement); holders of Common Stock or (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of 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 (other than adding consideration); or (viConditions, 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) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waivedExchange Act; provided, however, that notwithstanding anything herein to the contraryunless (i) any Person has made an Acquisition Proposal (as hereinafter defined), if or (ii) any of the conditions to of the Offer are set forth in Annex A hereto shall not satisfied or waived on any scheduled have been satisfied, the expiration date may not be extended beyond the 10th business day after the initial expiration date of the OfferOffer without the Company's prior written consent, Parent such consent not to be unreasonably withheld (it being expressly understood and agreed that, if all of the conditions set forth in Annex A hereto shall have been satisfied and no Person has made an Acquisition Proposal, Sub shall be required to extend have the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; providedright, furtherin its sole discretion, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on through one or more occasions for an aggregate period of not more than 15 extensions) through the 10th business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) day after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding taxinitial expiration date), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable (but in no event later than seven ten (710) business days days) following the public announcement by Parent and the Company of the Offer and Mergerexecution hereof, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent to cause Sub to, consummate commence 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 the attached Exhibit A (the "Offer Conditions") (), any of which may be waived in whole or in part by Parent and Sub in their its sole discretion, except that Sub shall not waive the Minimum Condition (as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth defined in Exhibit A are for A) without the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless written consent of the circumstances giving rise to any such conditions Company (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreementwhich shall not be unreasonably withheld). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve reserves the right, in their sole discretion, right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material other conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); , (iv) except as provided in the next sentenceSections 1.1(b) and (c), extend the Offer beyond any scheduled expiration date; Offer, (v) change the form of consideration payable in the Offer (other than adding consideration); Offer, or (vi) amend any other material terms term of the Offer in a manner adverse to the holders of Shares. Notwithstanding .
(b) Subject to the foregoingterms and conditions hereof, the Offer shall expire at midnight, New York City time, on the date that is the later of (i) twenty (20) business days after the date the Offer is commenced, and (ii) thirty (30) business days after the date of the press release referenced in the proviso to Section 6.7; provided, that Sub may, without the consent of the Company Company, (iy) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (iiz) extend the Offer for any period reasonably determined by Sub after consultation with its legal advisors to be required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; , subject in each case to any right of the Company to terminate this Agreement pursuant to the terms hereof.
(iiic) extend the Offer for If, at any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest scheduled expiration date that would otherwise be permitted under clauses of the Offer, the Minimum Condition (ias defined in Exhibit A) and or any of the conditions set forth in paragraphs (iia), (c), (e), (f), (g) or (h) of this sentence if there Exhibit A shall not have been tendered a sufficient number satisfied, but at such scheduled expiration date all the conditions set forth in paragraphs (b), (d) and (i) of Shares Exhibit A shall then be satisfied, or, if not then satisfied, are reasonably capable of being satisfied prior to enable December 27, 2000, at the Merger to be effected without a meeting request of the Company's stockholders Company (confirmed in accordance with Section 253 of writing), Sub shall extend the General Corporation Law of the State of DelawareOffer from time to time, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the any right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. .
(d) Subject only to the foregoing Offer Conditions and applicable law and upon the terms and subject to the conditions of the Offerso long as this Agreement has not been terminated in accordance with its terms, Sub shall, and Parent shall cause it Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any event within five (5) business days) after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act.
(be) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Sub shall file with the SEC (i) a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer an offer to Purchase purchase and a related letter of transmittal and and, if required to commence the Offer, a 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"), and (ii) jointly, with the Company, a Transaction Statement on Schedule 00X-0 (xxx "Xxxx 00X-0 Xxxxxxxxx"). Parent and Sub shall cause the Offer Documents to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree shall ensure that the Offer Documents shall and the Rule 13E-3 Statement comply in all material respects with the Exchange Act and the Offer Documentsprovisions of applicable federal securities laws and, on the date filed with the SEC and, if applicable, the date first published, sent or given to the Company's stockholdersholders of the Shares, shall do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading, except that no covenant representation is made by Parent or Sub with respect to any information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer DocumentsDocuments or the Rule 13E-3 Statement. Each of Parent, Sub and the Company each agrees promptly to correct promptly any information provided by it for use in the Offer Documents or the Rule 13E-3 Statement if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, Offer Documents and the Rule 13E-3 Statement as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. .
(f) The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents and the Rule 13E-3 Statement prior to their filing with the SEC or or, if applicable, dissemination to the stockholders of the Company. Parent and Sub agree to shall provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff (orally or in writing) with respect to the Offer Documents and the Rule 13E-3 Statement promptly after the receipt of such comments and to comments. The Company shall cooperate with the Company Parent and its counsel in responding to any such comments. Unless there is a reasonable basis for the Company to object, the Company agrees to execute the Rule 13E-3 Statement as prepared by Parent or Sub.
(g) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(h) Parent or Sub shall engage an information agent in connection with the Offer.
Appears in 1 contract
Samples: Merger Agreement (Kenetech Corp)
The Offer. (a) Provided that If (i) this Agreement shall has not have been terminated in accordance with Article VIII and SECTION 8.1, (ii) none of the events conditions set forth in Exhibit PARAGRAPHS (A) through (G) of APPENDIX A to this Agreement other than PARAGRAPH (F) (with respect to the representations and warranties as of the Expiration Date) and PARAGRAPH (G) (with respect to obligations to be performed or agreements or covenants to be performed or complied with after the commencement of the Offer) shall have occurred, as promptly as practicable but in no event later than seven occurred (7) business days following the public announcement unless waived by Parent in its sole discretion) and (iii) the Company Purchaser has received the Financing Letters then, within five Business Days following Purchaser's receipt of the Offer and MergerFinancing Letters (the "OFFER Deadline"), Sub shall, and Parent Purchaser shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act")) the Offer. Subject to the Minimum Condition and subject to satisfaction or waiver of the other conditions set forth in APPENDIX A to this Agreement, the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, Purchaser shall consummate the Offer in accordance with its terms and to accept for payment, payment and pay for, any for Shares tendered and not withdrawn pursuant to the Offer promptly after Purchaser is legally permitted to do so under Applicable Law. The Offer shall be made by means of the Offer to Purchase and shall be subject only to the Minimum Condition and the other conditions set forth in Exhibit APPENDIX A (to this Agreement and shall reflect, as appropriate, the "Offer Conditions") (any of which may be waived other terms set forth in whole or this Agreement. Unless previously approved by the Company in part by Parent and Sub in their sole discretionwriting, except as expressly provided no change in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not made (i) reduce which decreases the number of Shares subject to price per Share payable in the Offer, (ii) reduce which changes the Offer Priceform of consideration to be paid in the Offer, (iii) impose any material which reduces the maximum number of Shares to be purchased in the Offer or the Minimum Condition, (iv) which imposes conditions to the Offer other than in addition to those set forth in APPENDIX A hereto or which modifies the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided conditions set forth in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer APPENDIX A in a manner adverse to the holders of Shares. Notwithstanding , (v) which amends any other term of the Offer in a manner inconsistent with this Agreement and adverse to the holders of Shares, or (vi) which extends the expiration of the Offer beyond thirty (30) Business Days following the initial scheduled Expiration Date (the initial scheduled Expiration Date being 20 Business Days following the commencement of the Offer); PROVIDED, HOWEVER, that notwithstanding the foregoing, Sub maysubject to SECTION 8.1, if the conditions set forth in APPENDIX A are not satisfied or, to the extent permitted by this Agreement, waived, Purchaser will extend the Offer from time to time until the earlier of (i) the consummation of the Offer and (ii) thirty (30) Business Days in the aggregate following the initial Expiration Date of the Offer. In addition, Purchaser may increase the Offer Price, and the Offer may be extended to the extent required by Applicable Law in connection with such increase, in each case without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any Company. If all of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of but the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable validly tendered but not withdrawn, together with the Merger to be effected without a meeting Shares held by Parent and Purchaser, if any, is less than ninety percent (90%) of the Company's stockholders in accordance with Section 253 then outstanding number of Shares, then upon the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance applicable Expiration Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub Purchaser shall, and Parent shall cause it Purchaser to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to "Subsequent Offering Periods" as such term is defined in and in accordance with Rule 14d-11 of under the Exchange Act, for an aggregate period not to exceed twenty (20) Business Days (for all such extensions) and Purchaser shall, and Parent shall cause Purchaser to, (i) give the "Acceptance Date"required notice of such extension, and (ii) immediately accept and promptly pay for all shares of Company Common Stock validly Shares tendered and not withdrawn pursuant prior to the Offerdate of such extension.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferOffer is commenced, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement tender offer statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer. The Schedule TO will include, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a related form of letter of transmittal and summary advertisement 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"), and c) Parent and Sub shall Purchaser will take all steps necessary to cause to be disseminated the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares the Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer DocumentsPurchaser, on the date first publishedone hand, sent or given to and 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 on the statements thereinother hand, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to will promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respect, and Parent and Sub further agree to . Purchaser will take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on each of the Offer Documents prior to their filing before such Offer Document is filed with the SEC or dissemination disseminated to the stockholders holders of the CompanyShares, as the case may be. Parent and Sub agree to Purchaser will provide the Company and its counsel in writing with any comments or other communications, whether written or oral, that Parent, Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Documents, promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such commentsor other communications.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable but practicable, and in any event no event later more than seven (7) business days following Business Days, after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub Merger Subsidiary shall, and Parent shall cause Sub Merger Subsidiary to, commence, within the meaning of Rule 14d-2 l4d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunderAct, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub Merger Subsidiary to, and of Parent to cause Sub Merger Subsidiary to, consummate the Offer and accept for payment, payment and pay for, for any Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit Annex A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent terms and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. ; provided that Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to Merger Subsidiary may waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are (other than the Minimum Condition, which may not satisfied be waived without the prior written consent of the Company) and may make changes in the terms and conditions of the Offer except that, without the prior written consent of the Company, no change may be made to the form of consideration to be paid, no decrease in the Offer Price or waived on the number of Shares sought in the Offer may be made, no change which imposes additional conditions to the Offer or modifies any scheduled expiration date of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and neither Parent nor Merger Subsidiary may extend the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders except in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"2.01(c); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments theretoas amended and supplemented from time to time, the "Schedule TO") with respect to the Offer), which shall comply in all material respects with the provisions of applicable federal securities Laws, and shall contain as an exhibit or incorporate by reference the offer to purchase relating to the Offer to Purchase and a forms of the related letter of transmittal and summary advertisement other appropriate documents (such Schedule TO and the documents included therein pursuant which documents, as amended or supplemented from time to which the Offer will be madetime, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"), and . The Parent and Sub shall cause the Merger Subsidiary further agree to be disseminated disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities lawsLaws. In conducting the Offer, the Parent and Sub agree that the Offer Documents Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer Documents, on Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the date first published, sent or given to Company and its Subsidiaries and the Company's stockholdersstockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC. Parent and Merger Subsidiary agree to provide the Company, shall not contain and to consult with the Company and its counsel regarding, any untrue statement of a material fact comments that may be received from the SEC or omit to state any material fact required to be stated therein its staff (whether written or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub oral) with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer DocumentsDocuments promptly after receipt thereof and any responses thereto. Each of Parent, Sub Merger Subsidiary and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respect, and Parent and Sub Merger Subsidiary further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case case, as and to the extent required by applicable federal securities laws. Law.
(c) The Company and its counsel initial scheduled expiration date of the Offer shall be given reasonable opportunity 20 Business Days after the date of its commencement. Notwithstanding the foregoing, Parent and Merger Subsidiary shall have the right to review and comment upon extend the Offer Documents (i) from time to time if, at any scheduled or extended expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or waived; provided that if any of the conditions to the Offer are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to their filing with ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A hereto is not satisfied or waived as a result of the occurrence of any of the events described in subparagraph (b) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the written request of the Company if such conditions or condition could reasonably be expected to be satisfied on or before July 31, 2004, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or dissemination the staff thereof applicable to the stockholders Offer or any period required by applicable Law, (iii) on one or more occasions (all such occasions aggregating not more than 20 Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, represents more than 50% but less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent's decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (c) and (e) (excluding any wilful or intentional breach of any material obligation of the Company. ) on Annex A and of its right to terminate the Agreement under Sections 8.01(b), (d) (unless there has been a wilful or intentional breach of any material obligation by the Company), (i) or (j), (iv) on up to two occasions (for a period not to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or any extended expiration date of the Offer, and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate (collectively, the "Subsequent Period") pursuant to Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and Sub agree to provide the Company pay for Shares validly tendered and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect not withdrawn pursuant to the Offer Documents promptly as soon as possible after the receipt expiration thereof; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the Offer.
(e) The Offer Price may be increased by the Parent without the consent of such comments and to cooperate with the Company and its counsel Company, in responding to any such commentswhich case the Offer shall be extended, without the consent of the Company, as required by applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Wiser Oil Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredSection 8.1, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Merger Sub shall, and Parent shall cause Merger Sub to, commenceas promptly as practicable following the execution of this Agreement, and in any event within five (5) Business Days following the date of this Agreement (or such other later date as the parties may mutually agree in writing), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "“Exchange Act"”), ) the Offer at the Offer Price. Offer.
(b) The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, payment and to pay for, for any Shares 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 Date that number of Shares validly tendered and not withdrawn which, together with the Shares beneficially owned by Parent or Merger Sub, if any, shall represent at least a majority of the Shares then outstanding on a fully diluted basis (including as outstanding only options that are vested as of that date or that may vest prior to the End Date, if any, including as a result of the transactions contemplated hereby) (the “Minimum Condition”) and (ii) the satisfaction of those conditions set forth in Exhibit A Annex I (the "“Tender Offer Conditions") (”). The Company agrees that no Shares held by the Company or any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions its Subsidiaries (other than as a result any Shares held on behalf of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall third parties) will be the twentieth (20th) business day following commencement of tendered pursuant to the Offer. The .
(c) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Sections 1.1(c) and 1.1(e), to waive any Tender Offer Price shall be net Condition, increase the Per Share Amount and/or make any other changes to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, ; provided that without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to (i) reduce decrease the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Per Share Amount or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition, (iv) impose additional conditions to the Offer, (v) modify or amend the Tender Offer Conditions (other than adding considerationto waive such Tender Offer Conditions (other than the Minimum Condition); or ), (vi) decrease the time period during which the Offer shall remain open, or (vii) modify or amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date term of the Offer, Parent and Sub shall be except for any amendment required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected made to be satisfied by the Outside Date; providedin compliance with any Law, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable which amendment is not adverse to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer’s stockholders.
(bd) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Merger Sub shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements or amendments thereto, the "“Schedule TO"”) with respect to the Offer, Offer which shall contain as an exhibit or incorporate by reference the offer to purchase (the “Offer to Purchase Purchase”) and a related letter of transmittal and summary advertisement (such Schedule TO and the other ancillary Offer documents included therein and instruments pursuant to which the Offer will be made, together made (collectively with any supplements or amendments thereto, the "“Offer Documents"”), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees to promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respectrespect and Merger Sub shall, and Parent and further agrees to cause Merger Sub further agree to take all steps necessary to, use reasonable best efforts to cause the Schedule TO, as so correctedcorrected or supplemented, to be filed with the SEC and the other Offer Documents, as so correctedcorrected or supplemented, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the on any Offer Documents prior to their filing (including each amendment or supplement thereto) before they are filed with the SEC or dissemination and Parent and Merger Sub shall give consideration to the stockholders all of the Company. Parent reasonable additions, deletions and Sub agree to provide changes suggested thereto by the Company and its counsel counsel. Merger Sub shall, and Parent agrees to cause Merger Sub to, provide the Company with (in writing, if written), and to consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents as promptly as practicable after the receipt of thereof. The Company and its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses and Parent and Merger Sub shall give consideration to cooperate with all of the reasonable additions, deletions and changes suggested thereto by the Company and its counsel counsel.
(e) The Offer to Purchase shall provide for an expiration date of the 20th Business Day following (and including the day of) the commencement of the Offer (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in responding accordance with the terms of this agreement, the “Expiration Date”). Merger Sub shall not, and Parent agrees that it shall cause Merger Sub not to, terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 8.1 hereof. Except as provided in this Section 1.1(e), Merger Sub shall not, and Parent shall cause Merger Sub not to, extend or delay the Expiration Date (or expiration time) without the prior written consent of the Company. Notwithstanding the foregoing, Merger Sub and Parent may, without receiving the consent of the Company, extend the Expiration Date for any period required by applicable rules and regulations of the SEC, the NASDAQ Global Market (“NASDAQ”) or any other stock exchange or automated quotation system applicable to the Offer. In addition, if, on any Expiration Date the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act to have expired or been terminated, then Merger Sub and Parent shall extend the Offer from time to time until the fifth Business Day after the expiration or termination of the applicable waiting period under the HSR Act. So long as the Offer and this Agreement have not been terminated pursuant to Section 8.1, if at any scheduled Expiration Date, the Tender Offer Conditions shall not have been satisfied or earlier waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer and the Expiration Date to a date that is not more than ten (10) Business Days after such commentspreviously scheduled Expiration Date; provided that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the three (3) month anniversary of the date hereof (the “End Date”).
(f) Subject solely to the satisfaction or waiver (to the extent permitted by this Agreement) by Merger Sub of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, as soon as possible after the scheduled expiration of the Offer (as it may be extended in accordance with Section 1.1(e)), accept for payment Shares validly tendered and not withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date,” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) and promptly pay for such Shares. Parent shall, or shall cause Merger Sub to, provide or cause to be provided to the Paying Agent on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. In the event the Acceptance Date occurs but Parent does not acquire a number of Shares sufficient to enable a Short Form Merger (as defined in Section 2.8) to occur, Merger Sub may provide one or more “subsequent offering periods” for the Offer in accordance with Rule 14d-11 under the Exchange Act for a number of days to be determined by Parent which shall be not less than three (3) nor more than twenty (20) Business Days in the aggregate; provided that Merger Sub shall, and Parent shall cause Merger Sub to, immediately accept and promptly pay for all Shares tendered during the initial offering period and immediately accept and promptly pay for all Shares tendered during each such subsequent offering period, in each case in accordance with Rule 14d-11 under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (X Rite Inc)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredSection 8.01, as promptly as practicable but in no event later than seven (7) business days following ten Business Days after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Merger Sub shall, and Parent and HoldCo shall cause Merger Sub to, commence, commence (within the meaning of Rule 14d-2 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer at the Offer Price. The obligation obligations of Merger Sub to, and of Parent and HoldCo to cause Merger Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be are subject to the conditions set forth in Exhibit A (each, an “Offer Condition”, and together, the "“Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement“). The initial expiration date of the Offer shall be the twentieth (20th) business day 20th Business Day following the commencement of the OfferOffer (determined using Exchange Act Rule 14d-1(g)(3)). The Offer Price shall be net Merger Sub expressly reserves the right to waive any condition to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (iA) reduce the number of Shares subject to the Offer, (iiB) reduce the Offer Price, (iiiC) impose any material conditions waive or amend the Minimum Tender Condition (as defined in Exhibit A), (D) add to the Offer other than the Offer Conditions or Conditions, (E) modify the Offer Conditions (other than to waive any Offer Conditions Condition in a manner adverse to the extent permitted by this Agreement); holders of Shares, (ivF) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (vexcept as required or permitted by the other provisions of this Section 2.01), (G) change the form of consideration payable in the Offer (other than adding consideration); or (viH) otherwise amend any other material terms of the Offer in a any manner adverse to the holders of Shares. Notwithstanding the foregoing, .
(ii) Merger Sub may, without the consent of the Company shall (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, and Parent and HoldCo shall cause Merger Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; to):
(iiA) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; and
(iiiB) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, extend the Offer for any reason on one or more occasions for an aggregate in consecutive increments of up to ten Business Days each (or such longer period of as the parties hereto may agree), until such time as all Offer Conditions are satisfied; provided, however, that (1) Merger Sub shall not more than 15 business days be required to extend the Offer beyond the latest expiration date that would otherwise be permitted under clauses (i) End Date or the termination of this Agreement and (ii2) if, at any expiration of this sentence if there shall not the Offer, all of the Offer Conditions except for the Minimum Tender Condition are satisfied or have been tendered a sufficient number of Shares waived, Merger Sub shall only be required to enable extend the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, Offer for one or more subsequent offering additional periods not to exceed an aggregate of up to an additional twenty (20) business days in Business Days.
(iii) If the aggregate pursuant to Rule 14d-11 Offer is completed but fewer than ninety percent (90%) of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement then total outstanding Shares are accepted for payment pursuant to the terms hereof. Subject to Offer, then Merger Sub may, and at the foregoing and applicable law request of the Company shall, and upon any such request of the Company, Parent and HoldCo shall cause Merger Sub to, make available a “subsequent offering period” in accordance with Exchange Act Rule 14d-11.
(iv) On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Sub shall, and Parent and HoldCo shall cause it Merger Sub to, promptly after the expiration of the Offer, accept for paymentpayment and promptly thereafter pay for, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer. Parent and HoldCo shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(v) Nothing contained in this Section 2.01(a) shall affect any termination rights in Article 8. Merger Sub shall not terminate or withdraw the Offer without the prior written consent of the Company other than as permitted by this Agreement. In the event this Agreement is terminated pursuant to Article 8 prior to any scheduled expiration of the Offer, Parent and HoldCo shall cause Merger Sub to promptly (and in any event within one (1) Business Day of such termination) terminate the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase 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"), “) and Parent and Sub shall cause to be disseminated disseminate the Offer Documents to the holders of Shares as and to the extent required by applicable federal securities lawsthe Exchange Act. Unless previously withdrawn in accordance with Section 6.03, Parent and Merger Sub agree that shall be entitled to include the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference Board Recommendation in the Offer Documents. Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Merger Sub further agree to 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 to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities lawsApplicable Law. The Company and its outside legal counsel shall be given reasonable opportunity to review and comment upon the Offer Documents and any amendments thereto prior to their filing such documents with the SEC or dissemination of such documents to the stockholders holders of Shares, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the CompanyCompany and its counsel. Parent and Merger Sub agree to shall provide the Company and its outside legal counsel with any written comments (and, in the case of any oral comments, shall provide such comments to the Company and its outside legal counsel orally) Parent, Merger Sub or their outside legal counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate comments, shall consult with the Company and its outside legal counsel in (to whose comments reasonable and good faith consideration shall be given) prior to responding to such comments and shall provide to the Company and its outside legal counsel a copy of any written responses thereto and telephonic notice of any material discussions with the SEC staff.
(c) For purposes of this Agreement (including the exercise of the Top-Up Option) and the Offer, unless otherwise mutually agreed to by the Company and Merger Sub, any Shares subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer unless and until the shares underlying such commentsnotices of guaranteed delivery are delivered to or on behalf of Merger Sub.
Appears in 1 contract
Samples: Merger Agreement (Zoll Medical Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Subject to the terms and none of the events conditions set forth in Exhibit A shall have occurredthis Agreement, as promptly as reasonably practicable after the date of this Agreement, but in no event later than seven ten (710) business calendar days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Merger Sub shall, shall (and Parent shall cause Merger Sub to, commence) commence the Offer, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the applicable rules and regulations thereunderof the SEC, the "Exchange Act"), the Offer to purchase any and all outstanding Shares at a price equal to the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and purchase, accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be are subject only to the satisfaction or waiver of each of the conditions set forth in Exhibit Annex A (the "Offer Conditions").
(b) (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day Business Day following the commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding considerationdetermined using Exchange Act Rules 14d-1(g)(3) and 14d-2); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub mayif, without on the consent of the Company (i) extend the Offer, if at the scheduled or extended initial expiration date or any subsequent date as of which the Offer any is scheduled to expire, all of the Offer Conditions shall have not be been satisfied or waived, until such time as such conditions are satisfied or waived; providedthen Merger Sub shall, however, that notwithstanding anything herein subject to the contrary, if any rights of the conditions to parties under Article 8, extend (and re-extend) the Offer are not satisfied or waived on any scheduled and its expiration date beyond the initial expiration date or such other date for one or more periods, until the earlier to occur of (i) a date as of which all of the OfferOffer Conditions, Parent and Sub shall be required to extend including the Offer until such condition or conditions Minimum Tender Condition, are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) the Walk Away Date; provided that any such extension shall be in increments determined by Merger Sub of not more than ten (10) Business Days. Notwithstanding the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; (iii) extend the Offer for or any reason on one or more occasions for an aggregate period of required by any other Law. The Offer may not more than 15 business days beyond the latest be terminated prior to its expiration date that would otherwise (as such expiration date may be permitted under clauses (i) extended and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders re-extended in accordance with Section 253 of the General Corporation Law of the State of Delawarethis Agreement), as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate unless this Agreement is validly terminated in accordance with Article 8.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the terms hereofOffer. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Merger Sub shall, shall (and Parent shall cause it Merger Sub to, ) accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the OfferOffer 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.
(bd) The Offer shall be made by means of an offer Merger Sub may, in its discretion, elect to purchase provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act (each a "Offer to PurchaseSubsequent Offering Period") following the Acceptance Time if 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) represent less than 90% of the then outstanding number of Shares. If immediately following the Acceptance Time, Parent, Merger Sub and their respective Subsidiaries own more than 80% 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, and (ii) shares tendered in the Offer and not withdrawn), to the extent requested by the Company, Merger Sub shall provide for a Subsequent Offering Period of at least ten (10) Business Days; provided, however, that if the number of Shares issuable upon the exercise of the Top-Up Option would, after giving effect to such exercise and when added to the number of Shares so owned by the Parent, Merger Sub and their respective subsidiaries, represent not less than 90% of the then outstanding number of Shares, at the Parent's election, the Merger Sub shall not be required to provide for such 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 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 condition to the Offer, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the 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;
(iv) except as provided in Section 1.1(b) and Section 1.1(d), extend or otherwise change the expiration date of the Offer, except (A) as required by applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof) or (B) in connection with an increase of at least $0.25 per share in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the SEC;
(v) change the form of consideration payable in the Offer;
(vi) amend, modify or supplement any of the Offer Conditions set forth or the terms of the Offer in Exhibit A. 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 Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions; or
(vii) impose any condition to the Offer other than the Offer Conditions.
(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 (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which Tender Offer Statement shall (i) contain as an exhibit or incorporate by reference the Offer offer to Purchase 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 promptly upon request of Parent provide Parent with all information concerning the Company that is required to be included in the Offer Documents. Parent and Merger Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act requirements of applicable securities Laws, on the date first filed with the SEC and the Offer Documents, on the date first published, sent or given to the Company's stockholdersholders of Shares, shall and 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 or any of its stockholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent necessary such that the Offer Documents shall be, do not contain an untrue statement of a material fact or have become, false or misleading in omit to state any material respectfact required to be stated therein or necessary in order to make the statements therein, and in light of the circumstances under which they are made, not misleading. Each of Parent and Merger Sub further agree to 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 to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given afforded a reasonable opportunity to review and comment upon the Offer Documents prior to their filing before they are filed with the SEC or dissemination and disseminated to the stockholders holders of the CompanyShares. Parent and Merger Sub agree shall provide to provide the Company and its counsel copies of any written comments or telephonic notification of any oral comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate comments, shall consult with the Company and its counsel in prior to responding to any such commentscomments 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.
(g) 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, 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 occurring (or for which a record date is established) after the date of this Agreement and prior to the payment by Merger Sub for the Shares validly tendered and not withdrawn in connection with the Offer.
Appears in 1 contract
The Offer. The Borrower undertakes that:
(a) Provided that this Agreement the Arranger shall be given the opportunity to review and to approve the Press Release prior its issue (such approval not have been terminated in accordance with Article VIII to be unreasonably withheld or delayed).
(b) the Arranger shall be given the opportunity to review and none to approve the Offer Document prior to its issue (such approval not to be unreasonably withheld or delayed).
(c) the Arranger shall be given the opportunity to review and to approve the Squeeze out Documents prior to their issue (such approval not to be unreasonably withheld or delayed).
(d) without the prior agreement of the events Lenders, it will not:
(i) announce an intention to take up and pay for common shares at, or accept, any percentage below 662/3%of the common shares in the Target on a fully diluted basis for the purposes of any of the conditions set forth out in Exhibit A shall have occurredSchedule B of the Support Agreement; or
(ii) take or permit to be taken any step as a result of which the Offer Price under the Offer is, as promptly as practicable but in no event later than seven or may be required to be, increased beyond the Maximum Offer Price or such other level (7if any) business days following agreed between the public announcement by Parent Borrower and the Company Agent acting on behalf of the Lenders from time to time; or
(iii) take or permit to be taken any step as a result of which it may be required to make a take-over bid (as that term is defined in the Securities Act (Ontario)) except pursuant to the terms of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), set out in the Offer at the Offer Price. The obligation of Sub toDocument; or
(iv) waive, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretionpart, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, Offer in their sole discretion, to modify the terms set out in Schedule B of the Offer, except thatSupport Agreement, without the consent of the CompanyLenders (such consent not to be unreasonably withheld or delayed), Sub shall not (i) reduce the number of Shares subject other than, in relation to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if set out at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses paragraphs (i) and (iik) of this sentence if there shall Schedule B of the Support Agreement to the extent that any such waiver would not have been tendered a sufficient number material adverse effect on the Offer, the Borrower, the Group or the Target Group and, to the extent such waiver would have such a material adverse effect, further provided that the consent of Shares to enable the Merger Super Majority Lenders shall be required for such waiver (such consent not to be effected without a meeting unreasonably withheld or delayed)).
(e) The Borrower and will procure that no member of the Company's stockholders Group shall, issue any press release or other publicity in accordance with Section 253 relation to the Offer which makes reference to the Facility or to some or all of the General Corporation Law Lenders, the Agent or the Arranger unless the publicity is required by law or by the Toronto Stock Exchange, the Ontario Securities Commission or any other authority (whether in Canada or any other applicable jurisdiction) exercising similar powers (in which case the Borrower shall notify the Agent and the Lenders of such requirement as soon as reasonably practicable upon becoming aware of it) without the prior written consent of the State of Delaware, as amended Lenders (the "DGCL"not to be unreasonably withheld or delayed); and .
(ivf) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in all material respects relevant in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions context of the Offer, Sub shallit will comply with the Business Corporations Act (New Brunswick), securities legislation in Canada, US federal securities laws and Parent all other applicable statutes, laws, rules, published policies and regulations which are material in the context of the Offer including, without limitation, those of the Toronto Stock Exchange or the New York Stock Exchange except to the extent waived by the relevant authority or exchange.
(g) if it acquires:
(i) 90% or more of the common shares of the Target on a fully diluted basis it will promptly give notices under the Business Corporations Act (New Brunswick) for the purposes of the Squeeze out and shall cause take all necessary action to promptly complete the Squeeze out following completion of the Offer; or
(ii) more than 662/3% but less than 90% of the common shares of the Target on a fully diluted basis it towill promptly take steps to effect a Bidco Merger (provided that if it subsequently acquires more than 90% of the common shares of the Target on a fully diluted basis, accept for paymentit may instead elect to implement a Squeeze out).
(h) it will keep the Agent informed as to the status and progress of the Offer, the Bidco Merger or the Squeeze out, as appropriate and, in particular, will from time to time and promptly upon request give to the Agent reasonable details as permitted under applicable securities lawsto the current level of acceptances of the Offer and such other matters relevant to the Offer, the Bidco Merger or the Squeeze out, as the case may be, as the Agent may reasonably request and it will inform the Agent (as soon as is reasonably practicable) of its intention to take up and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to deposited under the Offer.
(bi) The Offer save as permitted under paragraph (d)(iv), it shall not amend, cancel or waive any of the provisions of the Support Agreement in a material respect without the prior written consent of the Agent acting on the instructions of the Lenders (such consent not to be made by means unreasonably withheld or delayed).
(j) as soon as practicably possible but in any event within 14 Business Days of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement the Press Release, it will post the Offer Document to the shareholders of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentsTarget.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set --------- forth in Exhibit paragraphs (a) through (i) of Annex A hereto shall have occurredoccurred and be continuing, Purchaser shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than seven (7) the tenth business day after the initial public announcement of Purchaser's intention to commence the Offer. The initial scheduled expiration date shall be 20 business days following the public announcement by Parent and the Company commencement of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent Purchaser to cause Sub to, consummate the Offer and accept for payment, payment Shares (and pay for, any Shares associated Rights) tendered and not withdrawn pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least the number of Shares that, ----------------- when added to Shares already owned by Parent, shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of each of the other conditions set forth in Exhibit Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share (and associated Right) payable in the "Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that, without the consent -------- ------- of the Company, (A) Purchaser shall not waive the Minimum Condition or, subject to the following sentence, extend the Offer Conditions"and (B) (any of which no change may be waived in whole made which decreases the price per Share (and associated Right) or in part by Parent and Sub in their sole discretion, except as expressly provided changes the form of consideration payable in the Offer Conditionsor which reduces the maximum number of Shares (and associated Rights) and to be purchased in the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The Offer or which imposes conditions to the Offer in addition to those set forth in Exhibit Annex A are for hereto or which otherwise adversely affects the sole benefit holders of Parent Shares (and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreementassociated Rights). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except thatPurchaser may, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the Offer for additional periods of not more than 10 business days each beyond any scheduled or extended expiration date of the Offer set in compliance with this Section 2.01, if, at the initial or any extended scheduled expiration of the Offer (as the case may be), any of the Offer Conditions conditions to Purchaser's obligation to accept for payment Shares (and associated Rights) shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, provided that notwithstanding anything herein Purchaser -------- shall not be permitted to extend the contrary, if any Offer (without the consent of the conditions Company) pursuant to this clause (i) beyond the Offer are not satisfied or waived on any scheduled expiration date 89th day following the commencement of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event if, prior to the 89th day following the -------- ------- commencement of the Offer, any applicable waiting period under the HSR Act has not expired or been terminated or clearance has not been received under the German Law Against Restraints on Competition with respect to the Transactions, then Purchaser shall Parent and Sub be required permitted to extend the expiration date Offer (without the consent of the Offer beyond Company) pursuant to this clause (i) until the Outside Dateearlier of (A) the fifth business day following the later of the expiration or termination of any applicable waiting period under the HSR Act and the receipt of clearance under the German Law Against Restraints on Competition and (B) the 120th day following commencement of the Offer; (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") ), or the staff thereof thereof, applicable to the Offer; , (iii) extend the --- Offer so that the Offer remains open for at least five business days after any reason on one disclosure of an Acquisition Proposal, or more occasions (iv) extend the Offer for an aggregate period of not more than 15 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clauses clause (i) and ), (ii) or (iii) of this sentence if there shall not sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares have been tendered a sufficient permanently satisfied or irrevocably waived, but the number of Shares validly tendered and not withdrawn pursuant to enable the Merger to be effected without Offer is less than 90% of outstanding Shares on a meeting fully diluted basis. In addition, at the initial or any extended expiration date of the CompanyOffer, Purchaser shall extend the Offer at the request of the Company for additional periods of not more than 10 business days each beyond such scheduled expiration of the Offer set in compliance with this Section 2.01, if, at such scheduled expiration date of the Offer, any of the conditions to Purchaser's stockholders obligation to accept for payment Shares (and associated Rights) shall not be satisfied or waived; provided that -------- Purchaser shall in no event be required to extend the Offer beyond the 89th day following the commencement of the Offer, provided, further, that if, prior to -------- ------- the 89th day following the commencement of the Offer, any applicable waiting period under the HSR Act has not expired or been terminated or clearance has not been received under the German Law Against Restraints on Competition with respect to the Transactions, then the Purchaser may be required to extend the Offer until the earlier of (A) the fifth business day following the later of the expiration or termination of any applicable waiting period under the HSR Act and the receipt of clearance under the German Law Against Restraints on Competition and (B) the 120th day following commencement of the Offer. The Per Share Amount shall, subject to applicable withholding of taxes in accordance with Section 253 of this Agreement and the General Corporation Law of the State of DelawareOffer, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject be net to the right of Parentseller in cash, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of this Agreement and the Offer. Subject to the terms and conditions of this Agreement, Sub shall, and Parent Purchaser shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for all Shares (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"associated Rights) all shares of Company Common Stock validly tendered and not withdrawn pursuant promptly following the expiration of the Offer. If the payment equal to the Offer.
(b) The Offer shall be made by means of an offer to purchase Per Share Amount in cash (the "Offer to PurchaseMerger Consideration") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause is to be disseminated made to a -------------------- person other than the Offer Documents to holders of person in whose name the surrendered certificate formerly evidencing Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, is registered 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 is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders stock transfer books of the Company. Parent , 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 Sub agree that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to provide a person other than the Company and its counsel any comments Parentregistered holder of the certificate surrendered, Sub or their counsel may receive from the SEC or its staff with respect shall have established to the Offer Documents promptly after the receipt satisfaction of Purchaser that such comments and to cooperate with the Company and its counsel in responding to any such commentstaxes either have been paid or are not applicable.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Article VIII and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Exhibit Annex A shall have occurredhereto, subject to the last sentence of this Section 1.1(a), as promptly as practicable (but in no any event not later than seven March 6, 2000), Parent will cause Purchaser to commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange ActEXCHANGE ACT")), the Offer Offer, whereby Purchaser will offer to purchase for cash all of the Shares at the Offer Price. The obligation of Sub toPer Share Amount, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon(subject to reduction for any stock transfer taxes payable by the seller, upon if payment is to be made to a Person other than the Person in whose name the certificate for such Shares is registered, or for any applicable withholding tax), PROVIDED, HOWEVER, that Parent may designate another direct or indirect subsidiary of Parent as the bidder in the Offer (within the meaning of Rule 14d-1(g) under the Exchange Act, in which case references herein to Purchaser will be deemed to apply to such subsidiary, as applicable). The obligation of Parent to cause Purchaser to consummate the Offer and to accept for payment and to promptly pay for Shares validly tendered in the Offer and not validly withdrawn in accordance therewith will be subject to, and only to, those conditions set forth in Annex A hereto (the "OFFER CONDITIONS").
(b) Subject to the requirements of applicable Law, Purchaser expressly reserves the right to waive any of the conditions to the Offer and to make any changes in the terms and subject to the or conditions of the Offer. Parent and Sub expressly reserve the right; PROVIDED, in their sole discretion, to modify the terms of the Offer, except that, HOWEVER that without the prior written consent of the Company, Sub shall Purchaser will not, and Parent will cause Purchaser not to, (i) reduce decrease or change the form of the Per Share Amount, (ii) decrease the number of Shares subject to sought in the Offer, (ii) reduce the Offer Price, or (iii) amend or waive the Minimum Condition (as defined in Annex A hereto) or impose any material conditions to the Offer other than the Offer Conditions or modify on the Offer Conditions (other than to waive Offer. In the event that any Offer Conditions to Condition is not satisfied or waived at the extent permitted by this Agreement); (iv) except as provided in time that the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form date of consideration payable in the Offer (other than adding considerationas such date may from time to time be extended, the "EXPIRATION DATE") would otherwise occur, Purchaser may from time to time extend the Expiration Date (but not beyond the Outside Date); , or (vi) amend any other material terms term of the Offer in a any manner not materially adverse to the holders of SharesStockholders. Notwithstanding In the foregoing, Sub may, without the consent event that at least a majority but less than 90% of the Company (i) extend the OfferVoting Securities, if at calculated on a fully diluted basis, have been validly tendered and not withdrawn on the scheduled or extended expiration date of the Offer any Offer, Purchaser shall, unless otherwise notified by the Company in writing, accept and purchase all of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein Shares tendered in the initial offer period and may notify Stockholders of Purchaser's intent to the contrary, if any provide a "subsequent offering period" for tender of at least 90% of the conditions Shares pursuant to Rule 14d-11 of the Exchange Act. The Offer may be extended in connection with an increase in the consideration to be paid pursuant to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent so as to comply with applicable rules and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position regulations of the Securities and Exchange Commission (the "SEC") ). Assuming the prior satisfaction or the staff thereof applicable to the Offer; (iii) extend waiver of the Offer Conditions, Parent will cause Purchaser to accept for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) payment, and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders pay for, in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (as soon as practicable after the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company Expiration Date or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentsextension thereof.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article VIII Agreement, and so long as none of the events or circumstances set forth in Exhibit subsections (c)(i) through (c)(iv) of Annex A hereto shall have occurredoccurred and be continuing, Parent shall cause Merger Sub as promptly as practicable but (and in no any event later than seven on or before the close of business on November 18, 2011) to commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer at the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, payment and to pay for, any for Company Shares validly tendered and not withdrawn pursuant to the Offer and not withdrawn prior to the applicable Expiration Date shall be subject solely to the those conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. Annex A. The conditions to the Offer set forth in Exhibit on Annex A are only for the sole benefit of Parent and Merger Sub and may be asserted or waived only by Parent and Sub regardless Merger Sub, in whole or in part, in their sole discretion; provided, however, that without the prior written consent of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cashCompany, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Merger Sub shall not waive the Minimum Condition or the HSR Condition. Merger Sub expressly reserve reserves the right, in their its sole discretion, to modify the terms and conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Sub shall not no modification or change may be made that (i) reduce the number of Shares subject to the Offer, (ii) reduce decreases the Offer Price, Price (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent except as permitted by this Agreement); , (ivii) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change changes the form of consideration payable in the Offer (other than by adding cash consideration); , (iii) changes the Minimum Condition, (iv) reduces or limits the number of Company Shares sought pursuant to the Offer, (viv) amend any other material terms of changes the Offer conditions set forth in Annex A hereto in a manner adverse to the holders of any of the Company Shares, (vi) adds any additional conditions to the Offer that are not set forth in Annex A, (vii) extends the Offer except as provided in Section 1.1(b) or (viii) otherwise amends, modifies or changes the Offer in a manner that is adverse to the holders of any of the Company Shares.
(b) The expiration date and time of the Offer shall be midnight, New York City time, on the twentieth (20th) business day following the commencement of the Offer (as determined using Rule 14d-1(g)(3) under the Exchange Act) (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, such later date and time to which the Offer has been 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”). Notwithstanding the foregoing, Merger Sub mayshall (and Parent shall cause Merger Sub to), without the consent of the Company (i) extend the Offer, if at the then-scheduled or extended expiration date of the Offer Expiration Date any of the Offer Conditions conditions set forth in Annex A shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary(and, if any of the conditions permitted to the Offer are not satisfied or be waived on any scheduled expiration date of the Offer, by Parent and Merger Sub shall be required to by Section 1.1(a), not waived by Parent and Merger Sub), extend and re-extend the Offer until on one or more occasions for one or more additional periods of up to five (5) Business Days each (the length of each such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected increment to be satisfied determined by the Outside Date; provided, further, that in no event shall Parent Merger Sub) and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend and re-extend the Offer for any period required by any rule, regulation, Law or by any interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date provided, that would otherwise be permitted under clauses (i) if the Proxy Statement Clearance Date has occurred on or prior to January 5, 2012, then no such extension shall be required after January 5, 2012 and (ii) if the Proxy Statement Clearance Date has not occurred on or prior to January 5, 2012 (and any of this sentence if there the conditions set forth in Annex A shall not have been tendered a sufficient number of Shares to enable the Merger be satisfied (and, if permitted to be effected without a meeting of the Company's stockholders in accordance with waived by Parent and Merger Sub by Section 253 of the General Corporation Law of the State of Delaware1.1(a), as amended (the "DGCL"not waived by Parent and Merger Sub); and (iv) after the Acceptance Date), for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub then either Parent or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law may request, and upon the terms and subject to the conditions of the Offersuch request, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.extend
Appears in 1 contract
The Offer. (a) Provided that Upon the terms and subject to the conditions of this Agreement shall not have been terminated in accordance with (including Article VIII and none of the events set forth in Exhibit A shall have occurredVII), as promptly as reasonably practicable following the date of this Agreement, but in any event no event later than seven the tenth (710th) business days following Business Day after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, and pay for, any Shares shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver (to the extent permitted under this Agreement and applicable Law) of the conditions set forth in Exhibit A Annex I (the "Offer Conditions") (any of which as they may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and amended from time to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange ActAgreement, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer“Offer Conditions”).
(b) The Offer shall be made by means of an offer to purchase (the "“Offer to Purchase"”) that describes the terms of the Offer as set forth in this Agreement, including the Offer Conditions. To the extent permitted by applicable Law, Parent and Merger Sub expressly reserve the right, at any time, to waive, in whole or in part, any Offer Condition (other than the Minimum Condition and the Termination Condition (as defined in Annex I)), to increase the Offer Price or to modify the terms of the Offer, in each case only in a manner not inconsistent with the terms of this Agreement; provided, however, that, without the prior written consent of the Company, neither Parent nor Merger Sub shall (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the Offer Price or change the form of consideration payable pursuant to the Offer, (iii) change, amend, modify or waive the Minimum Condition, (iv) add to the Offer Conditions set forth or impose any other conditions or requirements on the Offer, (v) change, amend, modify or supplement any existing Offer Condition in Exhibit A. On a manner that is adverse in any respect to the holders of Common Stock or that would, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or the Merger (except to effect an extension to the Offer to the extent expressly permitted by this Section 1.1 or to validly terminate this Agreement in accordance with Article VII) or impair the ability of Parent or Merger Sub to consummate the Offer, (vi) except as otherwise required or expressly permitted by Section 1.1(d), extend or otherwise change, amend or modify the Expiration Time, (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, (viii) terminate the Offer or (ix) otherwise change, amend, modify or supplement the Offer in any manner adverse to the holders of Common Stock or in any manner that delays, interferes with, hinders or impairs the consummation of the Offer. Subject to Section 1.1(h), the Offer may not be terminated or withdrawn prior to its scheduled Expiration Time (as extended and re-extended in accordance with Section 1.1(d)), unless this Agreement is terminated in accordance with Article VII.
(c) The initial expiration date of the Offer shall be at the time that is one (1) minute following 11:59 p.m., New York City time, on the date of commencement that is twenty (20) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date the Offer is first commenced (such initial expiration date and time of the Offer, Parent the “Initial Expiration Time”) and, if the Offer has been extended pursuant to and in accordance with Section 1.1(d), the Offer shall expire at the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended in accordance with this Agreement, the “Expiration Time”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Article VII, Merger Sub shall file with (and Parent shall cause Merger Sub to) extend the SEC a Tender Offer Statement on Schedule TO from time to time as follows:
(together with all supplements i) for the minimum period as required by any applicable Law or amendments theretoany rule, regulation, interpretation or position of the SEC, the "Schedule TO") with respect staff thereof or the Applicable Exchange or the staff thereof, applicable to the Offer, which the Schedule 14D-9 or the Offer Documents; provided, however, that Merger Sub shall contain as an exhibit or incorporate by reference not be required to extend the Offer to Purchase and a related letter date later than the Termination Date;
(ii) if, at the then-scheduled Expiration Time, the Company has delivered written notice to Parent in accordance with Section 5.3(e) or Section 5.3(f) that the Company intends to effect an Adverse Recommendation Change and/or terminate this Agreement due to its receipt of transmittal and summary advertisement a Superior Proposal or the occurrence of an Intervening Event, the Expiration Time shall be extended on one or more occasions so that the Expiration Time does not occur earlier than the close of business on the second (such Schedule TO and 2nd) Business Day after the documents included therein pursuant applicable notice period in Section 5.3(e) or Section 5.3(f) has expired; provided, however, that Merger Sub shall not be required to which extend the Offer will be madeto a date later than the Termination Date;
(iii) if, together with any supplements or amendments theretoat the then-scheduled Expiration Time, the "Company brings or shall have brought any Legal Action in accordance with Section 8.15 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Merger Sub, the Expiration Time shall be extended (A) for the period during which such action is pending or (B) by such other time period established by the Governmental Authority presiding over such action, as the case may be; provided, however, that Merger Sub shall not be required to extend the Offer Documents"to a date later than the Termination Date; or
(iv) if, at the then-scheduled Expiration Time, any of the Offer Conditions (other than those conditions that by their terms are to be satisfied at the Offer Closing) has not either been (A) satisfied or (B) waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and Parent and Sub shall cause to be disseminated Merger Sub to, extend the Offer Documents on one (1) or more occasions in consecutive periods of five (5) Business Days each (with each such period to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documentsend at 5:00 p.m., New York City time, on the date first published, sent last Business Day of such period) (or given such other duration as may be agreed to by Parent and 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 permit the statements thereinsatisfaction of such Offer Condition or Conditions; provided, in light that if at the otherwise scheduled Expiration Time, all of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by Offer Conditions (other than the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC Minimum Condition and the other Offer Documents, as so corrected, Conditions that by their terms are to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon satisfied at the Offer Documents prior to their filing with the SEC Closing) shall have been satisfied or dissemination to the stockholders waived, Merger Sub may, and Merger Sub shall upon receipt of the Company. ’s written request, extend the Offer for up to four (4) occasions, in the aggregate, in consecutive periods of five (5) Business Days each (or for such longer period as may be agreed in writing by Parent and the Company); provided, further, that if at the otherwise scheduled Expiration Time, all of the Offer Conditions (other than the Inside Date Condition and the other Offer Conditions that by their terms are to be satisfied at the Offer Closing) shall have been satisfied or waived, Merger Sub agree shall, and Parent shall cause Merger Sub to, extend the Offer until 5:00 p.m., New York City time, on the first Business Day after the Inside Date; provided, further, that Merger Sub shall not be required to provide extend the Offer to a date later than the Termination Date.
(e) Merger Sub shall not, and Parent shall not permit Merger Sub to, extend the Offer (i) in any manner except (A) as expressly required or permitted pursuant to Section 1.1(d) or (B) with the prior written consent of the Company or (ii) in any event beyond the Termination Date.
(f) On the terms and its counsel any comments Parentsubject to the conditions of this Agreement, including satisfaction or waiver of all of the Offer Conditions (other than those conditions that by their terms are to be satisfied at the Offer Closing), (i) prior to 9:00 a.m., New York City time, on the Business Day in accordance with the terms of this Agreement (determined using Rule 14d-1(g)(3) under the Exchange Act) immediately following the Expiration Time, Merger Sub or their counsel may receive from shall, and Parent shall cause Merger Sub to, consummate the SEC or its staff with respect Offer and irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer Documents and (ii) at or as promptly after as practicable following the receipt of such comments and to cooperate with the Company and its counsel Offer Acceptance Time (but in responding to any such comments.event within three
Appears in 1 contract
Samples: Merger Agreement (CDK Global, Inc.)
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable but in no event later than seven (7) within five business days following after the first public announcement by Parent and the Company of the Offer and Mergerthis Agreement, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with including the rules and regulations promulgated thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent to cause Sub to, consummate commence the Offer and accept for payment, and pay for, any Shares shares of Common Stock tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration Offer shall initially expire twenty (20) business days after the date of its commencement, unless this Agreement is terminated in accordance with Article VIII, in which case the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller whether or not previously extended in cash, without interest thereon, upon accordance with the terms and subject to hereof) shall expire on such date of termination. Without the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares subject impose conditions to the OfferOffer in addition to the Offer Conditions, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than modify or amend the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms term of the Offer in a manner adverse to the holders of Sharesshares of Common Stock, (iii) waive or amend the Minimum Condition (as defined in Exhibit A), (iv) reduce the number of shares of Common Stock subject to the Offer, (v) reduce the Per Share Amount, (vi) except as provided in the following sentence, extend the Offer, if all of the Offer Conditions are satisfied or waived, or (vii) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company Company, extend the Offer at any time, and from time to time, (i) extend the Offer, if at the then scheduled or extended expiration date of the Offer any of the Offer Conditions conditions to Sub's obligation to accept for payment and pay for shares of Common Stock shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the its staff thereof applicable to the Offer; or (iii) extend if all Offer Conditions are satisfied or waived but the Offer for any reason on one or more occasions number of shares of Common Stock tendered is less than 90% of the then outstanding number of shares of Common Stock, for an aggregate period of not more than 15 10 business days (for all such extensions) beyond the latest expiration date that would otherwise be permitted under clauses clause (i) and or (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, sentence. So long as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to is in effect and the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the OfferOffer Conditions have not been satisfied or waived, Sub shall, and Parent shall cause it Sub to, accept for payment, as promptly as permitted under applicable securities laws, cause the Offer not to expire. Subject to the terms and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to conditions of the Offer (such datebut subject to the right of termination in accordance with Article VIII), regardless of whether Sub shall, and Parent and shall cause Sub elect to provide to, pay for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") 14D-1 with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase purchase and a related letter of transmittal and summary advertisement (such Schedule TO 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"), . The Company and Parent its counsel shall be given an opportunity to review and Sub shall cause to be disseminated comment upon the Offer Documents to holders of Shares as and prior to the extent required by applicable federal securities lawsfiling thereof with the SEC. Parent and Sub agree that the The Offer Documents shall comply as to form in all material respects with the requirements of the Exchange Act Act, and, on the date filed with the SEC and the Offer Documents, on the date first published, sent or given to the Company's stockholders, the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant representation is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Sub further agree agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Sharesshares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel in writing with any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the upon receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Section 2.1 The Offer. 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 in Exhibit on Annex A hereto (the "Tender Offer Conditions") shall have occurredoccurred and are continuing, as promptly as practicable after the date of this Agreement (but in no any event not later than seven (7) business days following Business Days after the first public announcement by Parent of the execution and delivery of this Agreement), Sub shall commence (within the Company meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer. The initial expiration date of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, be the twentieth (20th) Business Day following the date the Offer is commenced within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation of Sub to, to accept for payment and of Parent to cause Sub to, consummate pay for any Ordinary Shares tendered in 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 "Tender Offer Conditions") (, any of which which, subject to the proviso below, may be waived by Parent or Sub in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Tender Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Tender Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the OfferConditions. Parent and Sub expressly reserve the right, in their sole discretion, right to modify the terms of the Offer, except thatprovided, however, that neither Parent nor Sub shall (and Parent shall cause Sub not to), without the prior written consent of the Company, Sub shall not (i) reduce the number of Ordinary Shares subject to be purchased pursuant to the Offer, (ii) reduce the Ordinary Share Offer Price, (iii) impose any material additional conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Offer, (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (v) make any change to the terms of the Offer, including without limitation the Tender Offer (other than adding consideration); or Conditions, which is materially adverse in any manner to the holders of the Ordinary Shares, (vi) amend any other material terms of or waive the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoingMinimum Condition, except that Parent or Sub may, without at any time, amend the consent Minimum Condition to equal the number of Ordinary Shares representing a majority of the Company total number of votes of the outstanding Ordinary Shares on a fully-diluted basis or (ivii) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waivedOffer, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to Parent or Sub may extend the contrary, if any expiration date of the conditions Offer: (A) as required by any rule, regulation or interpretation of the Commission; or (B) in the event that any condition to the Offer are is not satisfied or and, to the extent permitted herein, is not waived on any as of the scheduled expiration date of the Offer, Parent and Sub for such successive periods for up to ten (10) Business Days at a time (or such longer period as shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied approved by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend Company) until the expiration date earlier of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares acceptance for payment of any Ordinary Shares pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase date (the "Offer to PurchaseTermination Date") subject to the Offer Conditions set forth in Exhibit A. On that is sixty (60) days from the date of commencement of the Offer. Notwithstanding anything in the foregoing to the contrary, the Company may require Sub to extend the Offer on one occasion for a maximum period of ten (10) days if at the scheduled expiration date of the Offer, the Tender Offer Conditions (assuming for this purpose that the Minimum Condition has not been amended in accordance with clause (vi) of the proviso contained above in this Section 2.1(a)) have not been satisfied. In addition, notwithstanding anything in this Section 2.1(a) to the contrary, if not already disclosed in the Offer to Purchase (as defined below), Parent and Sub shall file with may amend the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, as defined below) to permit the announcement of a subsequent offering period (as such term is defined in Rule 14d-1 promulgated under the Exchange Act (the "Schedule TOSubsequent Offer Period")) with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.Sub
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 11.01 and none 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 events conditions set forth in Exhibit A shall have occurredAnnex I hereto (the "Offer Conditions") (other than the conditions set forth in clause (i) and subclause (E) of clause (ii)), as promptly as practicable after the date hereof, but in no event later than seven (7) business days 10 Business Days following the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub Merger Subsidiary shall, and Parent shall cause Sub it to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act 0000 Xxx) the Offer , to purchase any and all outstanding shares of 1934Company Common Stock, including the associated preferred stock purchase rights (the "Company Rights") issued pursuant to the Amended and Restated Rights Agreement dated as of May 9, 2007 between the Company and Computershare Investor Services, LLC, as amended rights agent (the "Company Rights Agreement"), for so long as such Company Rights are outstanding (each such share of Company Common Stock, together with the rules its associated Company Right, a "Share", and regulations thereundercollectively, the "Exchange ActShares"), the Offer ) at a price per share equal to the Offer Price. The obligation Offer shall be subject to the Offer Conditions. The date on which Merger Subsidiary commences the Offer within the meaning of Sub Rule 14d-2 under the 1934 Act is referred to as the "Offer Commencement Date".
(b) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, and promptly after the expiration of Parent to cause Sub tothe Offer, consummate the Offer and accept for payment, and pay for, any payment all Shares validly tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the time at which Shares are first accepted for payment under the Offer, the "Offer ConditionsAcceptance Time") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date obligation of Merger Subsidiary to accept for payment Shares tendered pursuant to the Offer shall be subject only to the twentieth (20th) business day following commencement satisfaction or waiver of each of the OfferOffer Conditions (and shall not be subject to any other conditions). The Promptly after the Acceptance Time, Merger Subsidiary shall pay the Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. for such Shares.
(c) Parent and Sub Merger Subsidiary expressly reserve the right, right to waive any of the Offer Conditions and to make any change in their sole discretion, to modify the terms of or conditions to the Offer, except including raising the Offer Price; provided that, without the prior written consent of the Company, Sub shall not neither Parent nor Merger Subsidiary shall:
(i) reduce waive or change the number of Shares subject to the Offer, Minimum Condition (as defined in Annex I);
(ii) reduce decrease the Offer Price, ;
(iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable to be paid in the Offer;
(iv) decrease the number of shares of Company Common Stock sought to be purchased by Merger Subsidiary in the Offer;
(v) extend or otherwise change the expiration date of the Offer (other than adding consideration)except as otherwise provided herein; or or
(vi) amend otherwise amend, modify or supplement any other material of the Offer Conditions or terms of the Offer in a manner adverse that adversely affects, or would reasonably be expected to adversely affect, the holders of Shares.
(d) Unless extended as provided in this Agreement, the Offer shall expire on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 0000 Xxx) after the Offer Commencement Date. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the OfferMerger Subsidiary shall, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions and Parent shall not be satisfied or waivedcause it to, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof or Nasdaq applicable to the Offer; (iii) extend the Offer or for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) required by Applicable Law and (ii) if, on the initial expiration date or any subsequent date as of this sentence if there shall which the Offer is scheduled to expire, any Offer Condition is not have satisfied and has not been tendered a sufficient number of Shares to enable the waived, then Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub Subsidiary shall, and Parent shall cause it to, accept extend the Offer for paymentone or more periods ending no later than the End Date to permit such Offer Condition to be satisfied (provided, as promptly as permitted under applicable securities lawshowever, that, if all of the Offer Conditions other than the Minimum Tender Condition and pay for (after giving effect those that by their nature are to any required withholding tax)be satisfied at the expiration of the Offer have been satisfied or waived, as promptly as practicable Merger Subsidiary shall have the right, but not the obligation, to terminate the Offer 60 days after the date on which Sub first accepts shares for payment pursuant all of the Offer Conditions other than the Minimum Tender Condition and those that by their nature are to be satisfied at the expiration of the Offer have been satisfied or, to the Offer (such dateextent permissible, regardless have been waived by Merger Subsidiary). Following expiration of whether Parent and Sub elect to the Offer, Merger Subsidiary may, in its sole discretion, provide for one or more a subsequent offering periods pursuant to period ("Subsequent Offering Period") in accordance with Rule 14d-11 of the Exchange Act1934 Act if, immediately following the "Acceptance Date") Time, Parent, Merger Subsidiary and their respective Subsidiaries and Affiliates beneficially own less than 90% of the Shares outstanding at that time (which Shares beneficially owned shall include Shares tendered in the Offer and not withdrawn). Merger Subsidiary shall, and Parent shall cause it to, immediately accept for payment and promptly pay for all shares of Company Common Stock Shares as they are validly tendered during such Subsequent Offering Period and not withdrawn pursuant in any event in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the 1934 Act. The Offer may be terminated prior to the Offerits expiration date (as such expiration date may be extended and re-extended in accordance with this Section 2.01(d)), but only if this Agreement is validly terminated in accordance with Article 11.
(be) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to As soon as practicable on the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferCommencement Date, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "Schedule TO") with respect to that shall include the Offersummary term sheet required thereby and, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and Purchase, a related form of letter of transmittal and transmittal, a form of summary advertisement (such and any schedule or form required to be filed pursuant to the instructions to Schedule TO and the documents included therein pursuant to which the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause ; (ii) timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be disseminated filed pursuant to Chapter 80B of the Minnesota Statutes (the "Minnesota Registration Statement"); and (iii) cause the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that Applicable Law (including the Offer Documents shall comply 0000 Xxx) and, by means of inclusion in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given shall disseminate to the Company's stockholders, holders of Shares the information set forth in the Minnesota Registration Statement to the extent required by Chapter 80B of the Minnesota Statutes. The Offer shall be conducted in compliance with the 1934 Act.
(f) Parent and Merger Subsidiary shall cause the Offer Documents to (i) comply with the applicable requirements of the 1934 Act and (ii) not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, except that however, no covenant is made by Parent or Sub Merger Subsidiary with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Parent and Merger Subsidiary shall cause the information supplied by Parent and its Affiliates specifically for inclusion in the Company's Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "Schedule 14D-9") or the information statement containing the information required by Section 14(f) of the 1934 Act and Rule 14(f)-1 promulgated thereunder (together with any amendments or supplements thereto, the "Information Statement"), at the respective times the Schedule 14D-9 or the Information Statement are filed with the SEC not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Sub Merger Subsidiary and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that the Offer Documents such information shall have become (or shall have become known to be, or have become, ) false or misleading in any material respect, and . Parent and Sub further agree to take all steps necessary to Merger Subsidiary shall cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsApplicable Law (including the 1934 Act). The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub Merger 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 of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC. Each of Parent and Merger Subsidiary shall respond as promptly as practicable to any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(g) Parent shall cause to be provided to Merger Subsidiary all of the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the Offer (including pursuant to any Subsequent Offering Period), and shall cause Merger Subsidiary to perform, on a timely basis, all of Merger Subsidiary's obligations under this Agreement.
(h) Parent and Merger Subsidiary shall promptly after the receipt of such comments and to cooperate file with the Company and its counsel Commissioner of Commerce of the State of Minnesota all materials referred to in responding to any such commentsSection 80B.04 of the Minnesota Statutes.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII its terms and none of the events conditions set forth in Exhibit Annex A hereto shall have occurredoccurred or be continuing, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent shall cause Merger Sub to, and the Company of the Offer and Merger, Merger Sub shall, and Parent shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer at as promptly as reasonably practicable after the Offer Pricedate hereof. The obligation of Merger Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any payment Shares tendered and not withdrawn pursuant to the Offer shall be subject to (i) 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, and without giving effect to the exercise of the option pursuant to the Stock Option Agreement, shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of 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 but excluding any such holders of Options or Warrants who have agreed in writing to accept the cash payments described in Section 2.7 hereof upon termination of their Options or Warrants as described in Section 2.7 hereof) 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 Exhibit Annex A (hereto. Parent expressly reserves the "Offer Conditions") (right to waive any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of which the Offer; provided, however, that no change may be waived in whole or in part made by Parent and Sub in their sole discretion, except as expressly provided without the prior written consent of the Company which (A) decreases the Per Share Amount or changes the form of consideration payable in the Offer ConditionsOffer, (B) and waives the Minimum Condition, (C) reduces the maximum number of Shares to be purchased in the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The Offer, (D) imposes conditions to the Offer in addition to those set forth in Exhibit Annex A are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to hereto or (E) amends any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date term of the Offer shall be in any other manner materially adverse to the twentieth (20th) business day following commencement holders of the Offer. The Offer Price shall be net to Shares or the seller in cash, without interest thereon, upon the terms and subject to the conditions likelihood of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms consummation of the OfferMerger. Notwithstanding the foregoing, except thatMerger Sub may, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer beyond the scheduled expiration date, which shall be twenty (20) Business Days following the commencement of the Offer, if if, at the scheduled or extended expiration date of the Offer Offer, any of the Offer Conditions conditions to Merger Sub's obligation to accept for payment Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") , or the staff thereof thereof, applicable to the Offer; , or (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days ten (10) Business Days beyond the latest expiration applicable date that would otherwise be permitted under clauses clause (i) and or (ii) of this sentence if there shall not have been tendered a sufficient sentence, if, as of such date, all of the conditions (including the Minimum Condition) to Merger Sub's obligations to accept for payment Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to enable the Merger to be effected without a meeting Offer totals less than ninety percent (90%) of the Company's stockholders issued and outstanding Shares on a fully diluted basis. Following expiration of the Offer, the Purchaser may, in its sole discretion, provide a subsequent offering period (a "Subsequent Offering Period") in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of under the Exchange Act. The Per Share Amount shall, in each case subject to the right any applicable withholding of ParentTaxes, Sub or the Company to terminate this Agreement pursuant be $1.00 net to the terms hereof. Subject to sellers of the foregoing and applicable law and Shares in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer and this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant as 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 for the sole purpose of complying in whole or in part with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. If the payment equal to 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 transfer and other Taxes required by reason of the 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 cause Merger Sub to, and Merger Sub shall, terminate promptly the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which . The Schedule TO shall contain as an exhibit or shall incorporate by reference an offer to purchase (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 a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madeother documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing such documents being filed with the SEC or dissemination disseminated to the stockholders holders of the CompanyShares. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with shall provide the Company and its counsel with a reasonable opportunity to participate in responding the formulation of the response of Parent or Merger Sub to any such comments.
(c) Subject to applicable law and the rules and regulations of The Nasdaq Stock Market, Inc. and/or the OTC Bulletin Board, in the event that, following a Subsequent Offering Period, if any, the Purchaser has acquired less than ninety percent (90%) of the Shares, but not less than seventy-five percent (75%) of the Shares, the parties have entered into a Stock Option Agreement (the "Stock Option Agreement"), pursuant to which the Company has granted to the Purchaser an option to purchase that number of Shares equal to the number of Shares that, when added to the number of Shares owned by the Purchaser and its affiliates immediately following expiration of the Subsequent Offering Period, shall constitute ninety percent (90%) of the Shares then outstanding on a fully diluted basis.
(d) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to accept for payment, and to pay for, any and all Shares that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Tender Loving Care Health Care Services Inc/ Ny)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated in accordance with Article VIII and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Exhibit A shall have occurredAnnex I, as promptly as practicable but after the date hereof (and in any event no event later than seven (7) business days following five Business Days after the public announcement by Parent and the Company of the Offer and Mergerdate hereof), Sub Merger Subsidiary shall, and Parent shall cause Sub Merger Subsidiary to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 0000 Xxx) the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub condition that constitutes a breach of this Agreement). The initial expiration date of the Offer there shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller validly tendered in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify accordance with the terms of the Offer, except prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, without together with the consent Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and to the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the Companyconditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, Sub shall not (i) reduce the number Minimum Condition may not be waived, (ii) no change may be made that changes the form of Shares subject consideration to be paid pursuant to the Offer, (ii) reduce decreases the Offer PricePrice or the number of Company Shares sought in the Offer, (iii) impose any material imposes conditions to the Offer other than the Offer Conditions in addition to those set forth in Annex I, or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); otherwise amends or (vi) amend any other material terms of modifies the Offer in a any manner materially adverse to the holders of Company Shares, and (iii) the Offer may not be extended except as set forth in this Section 2.01(a) . Notwithstanding Subject to the foregoingterms and conditions of this Agreement, Sub maythe Offer shall expire at midnight, without New York City time, on the consent of date that is 20 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the Company (i0000 Xxx) after the date that the Offer is commenced. Merger Subsidiary shall extend the OfferOffer (1) if, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waivedOffer, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are shall not have been satisfied or waived on waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions, (y) the reasonable determination by Parent that any scheduled expiration date of the Offer, Parent and Sub shall be required such condition to extend the Offer until is not capable of being satisfied on or prior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by Merger Subsidiary, and (z) the Outside End Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii2) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer or any period required by Applicable Law. Following expiration of the Offer; (iii) extend the Offer for any reason on , Merger Subsidiary may, in its sole discretion, provide one or more occasions for an aggregate period subsequent offering periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) 1934 Act, if, as of this sentence if the commencement of each such period, there shall not have been validly tendered a sufficient and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period that number of Company Shares necessary to enable permit the Merger to be effected without a meeting of stockholders of the Company's stockholders , in accordance with Section 253 253(a) of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereofDelaware Law. Subject to the foregoing and applicable law foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Sub Merger Subsidiary shall, and Parent shall cause it Merger Subsidiary to, accept for paymentpayment and pay for, as promptly as permitted under applicable securities lawspracticable, and pay for all Company Shares (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"A) all shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferOffer after the final expiration of the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each Company Share 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, subject to reduction for any applicable withholding Taxes.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On As soon as practicable on the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that shall include the Offersummary term sheet required thereby and, which shall contain as an exhibit exhibits or incorporate incorporated by reference thereto, the Offer to Purchase and a related forms of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”), and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as Company Shares. The Company shall promptly furnish to Parent and to Merger Subsidiary in writing all information concerning the extent Company that may be required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent laws 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 is made reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically Merger Subsidiary for inclusion in the Schedule TO or incorporation by reference in the Offer Documents. Each of Parent, Sub Merger Subsidiary and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and . Parent and Sub further Merger Subsidiary agree to take all steps necessary to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Sub Merger 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 the receipt of such those comments or other communications, and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to cooperate provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the Company and its counsel in responding to any such commentsSEC.
Appears in 1 contract
Samples: Merger Agreement (Oracle Corp)
The Offer. (a) Provided that Upon the terms and subject to the conditions of this Agreement shall not have been terminated in accordance with (including Article VIII and none of the events set forth in Exhibit A shall have occurredVII), as promptly as reasonably practicable following the date hereof, but in any event no event later than seven the tenth (710th) business days following Business Day after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunderAct, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, and pay for, any Shares shares of Common Stock validly tendered and not withdrawn pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A Annex I (as they may be amended in accordance with this Agreement, the "“Offer Conditions"”).
(b) (To the extent permitted by Law, Parent and Merger Sub reserve the right, at any of which may be waived time, to waive, in whole or in part by Parent and Sub in their sole discretionpart, except as expressly provided in the any Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions Condition (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreementthe Minimum Condition). The initial expiration date of , to increase the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, or to modify the terms of the Offer, except in each case only in a manner not inconsistent with the terms of this Agreement; provided, however, that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce the maximum number of Shares subject shares of Common Stock sought to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Price or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (other than adding consideration); v) modify or amend any existing Offer Condition in a manner that is adverse to the holders of Common Stock or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or the Merger or impair the ability of Parent or Merger Sub to consummate the Offer, (vi) amend except as otherwise required or expressly permitted by Section 1.1(d) extend or otherwise change the Expiration Time, (vii) provide for any other material terms “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (viii) otherwise amend, modify or supplement the Offer in a any manner adverse to the holders of Shares. Notwithstanding Common Stock or in any manner that delays or unreasonably interferes with, hinders or impairs the foregoing, Sub may, without the consent consummation of the Company Offer. Subject to Section 1.1(g), the Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VII.
(ic) extend The Offer shall initially expire at 5:00 p.m., New York City time, on the Offer, if at date that is twenty-one (21) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the scheduled or extended expiration date Exchange Act) following the commencement of the Offer any of the Offer Conditions shall not be satisfied or waived, until (such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled initial expiration date and time of the Offer, Parent the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Subject to Article VII, Merger Sub shall be required to may or shall, as applicable, extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected from time to be satisfied by time as follows:
(i) for the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period as required by any applicable Law, including any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof applicable or the Applicable Exchange;
(ii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any Legal Action in accordance with Section 8.15 to enforce specifically the Offer; performance of the terms and provisions of this Agreement by Parent or Merger Sub, the Expiration Time shall be extended (A) for the period during which such action is pending or (B) by such other time period established by the Governmental Authority presiding over such action, as the case may be, but, in each case of clauses (A) and (B), not past the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 7.2(a));
(iii) subject to Section 7.7(a), if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (B) waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any reason on one or more occasions for an aggregate in consecutive periods of five (5) Business Days each (with each such period to end at 5:00 p.m., New York City time, on the last Business Day of not more than 15 business days beyond such period) (or such other duration as may be agreed to by Parent and the latest expiration date Company) in order to permit the satisfaction of such Offer Conditions; provided, however, that would otherwise be permitted under clauses (i) and (ii) of this sentence if there Merger Sub shall not have been tendered be required to extend the Offer to a sufficient number date later than the Termination Date (for the avoidance of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delawaredoubt, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate Termination Date may be extended pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Section 7.2(a)) unless Parent or Merger Sub or the Company is not then permitted to terminate this Agreement pursuant to Section 7.2(a), in which case Merger Sub shall be required to extend the terms hereofOffer beyond the Termination Date; or
(iv) if, at the then-scheduled Expiration Time, (A) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Closing and the Closing and (B) Parent and Merger Sub acknowledge and agree in writing that, if all Offer Conditions had been satisfied at the then scheduled Expiration Time, the Company would have been entitled to terminate this Agreement pursuant to Section 7.4(e) and receive the Parent Termination Fee, Merger Sub shall have the right in its sole discretion to extend the Offer on up to three occasions in consecutive increments of five (5) Business Days each (with each such period to end at 5:00 p.m., New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); provided, that Merger Sub shall not be permitted to extend the Offer to a date later than the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 7.2(a)). Subject Merger Sub shall not, and Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or permitted pursuant to the foregoing and applicable law and upon this Section 1.1(d).
(e) On the terms and subject to the conditions of this Agreement, including satisfaction or waiver of all of the OfferOffer Conditions, (i) prior to 9:00 a.m., New York City time, on the Business Day (determined using Rule 14d-1(g)(3) under the Exchange Act) immediately following the Expiration Time, Merger Sub shall, and Parent shall cause it Merger Sub to, irrevocably accept for payment (the time of acceptance for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the “Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"Time”) all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer; provided, that with respect to shares of Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Merger Sub shall be under no obligation to make any payment for such shares unless and until such shares are delivered in settlement or satisfaction of such guarantee. Parent shall provide or cause to be provided to Merger Sub, at the Offer Acceptance Time, the funds that, when taken together with available cash of the Company and its Subsidiaries, are necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.
(f) The Offer Price payable in respect of each share of Common Stock shall be paid on the terms and subject to the conditions of this Agreement. The Company agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(bg) The Unless this Agreement is terminated in accordance with Article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company in its sole discretion. In the event this Agreement is terminated in accordance with Article VII, 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 of Common Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares to the tendering stockholders in accordance with applicable Law.
(h) Subject to the obligations of the Company and its Subsidiaries pursuant to Section 5.1, the Offer Price shall be made by means adjusted appropriately and proportionately to reflect the effect of an offer any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to purchase (the "Offer to Purchase") subject Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Conditions set forth in Exhibit A. Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Common Stock the same economic effect as contemplated by this Agreement prior to such action.
(i) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO") with respect to the Offer”), which shall contain as an exhibit or incorporate by reference the Offer an offer to Purchase purchase and a related letter of transmittal and summary advertisement 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 Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to the holders of Shares the Common Stock as and to the extent required by applicable United States federal securities laws. The Company shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel upon request all information concerning the Company and Sub agree its Subsidiaries that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to may 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 reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Merger Sub further agree to shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected, amended or supplemented to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of Sharesthe Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Sub shall include in such document (and any amendments thereto) all comments proposed by the Company and its counsel and acceptable to the stockholders of the CompanyParent and Merger Sub and their counsel, in each case acting reasonably. Parent and Merger Sub agree to shall provide the Company and its counsel with (A) any comments Parentor other communications, whether written or oral, that Parent or Merger Sub or their counsel may receive from time to time from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (which response shall include all comments proposed by the Company and its counsel and acceptable to Parent and Merger Sub and their counsel, in each case acting reasonably), including by offering the Company an opportunity to participate with Parent, Merger Sub or their counsel in any material discussions or meetings with the SEC or other Governmental Authorities to the extent such participation is not prohibited by the SEC or other Governmental Authorities. In the event that Parent or Merger Sub receives any comments from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to respond as promptly after the receipt of such comments and as practicable to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
Samples: Merger Agreement (Air Methods Corp)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate this Agreement shall not have been terminated in accordance with pursuant to Article VIII and none of the events set forth in Exhibit A shall have occurred8, as promptly as practicable after the date hereof, but in no event later than seven the later of (7A) business days fifteen Business Days following the public announcement date of this Agreement and (B) five Business Days following the date of satisfaction or waiver by Parent Buyer and the Company of the Offer and Mergercondition set forth under Part 1 of Annex I hereto (the “Pre-Launch Condition”), Sub shall, and Parent Buyer shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 0000 Xxx) the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation Pre-Launch Condition is for the benefit of Sub both Buyer and the Company and may be waived only by the Company and Buyer jointly (either in whole or in part) by written agreement. No party may invoke the Pre-Launch Condition if the non-satisfaction of such condition is caused by a breach of that party of any of its obligations under this Agreement. The obligations of Buyer to, and of Parent to cause Sub Buyer to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A Part 2 of Annex I hereto (the "“Offer Conditions"”). The date on which Buyer commences the Offer is referred to as the “Offer Commencement Date”.
(b) (Buyer expressly reserves the right at any of which may be waived time to, its sole discretion, waive, in whole or in part by Parent part, any of the Offer Conditions and Sub in their sole discretion, except as expressly provided to make any change in the Offer Conditions) and to the rights terms of Parent and Sub to terminate this Agreement as provided in Section 8.1. The or conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except ; provided that, without the prior written consent of the Company, Sub Buyer shall not not:
(i) reduce waive or change the number of Shares subject to the Offer, Minimum Condition (as defined in Annex I);
(ii) reduce decrease the Offer Price, Consideration;
(iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable to be paid in the Offer Offer;
(other than adding consideration)iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time except as otherwise provided in this Agreement; or or
(vi) amend impose additional Offer Conditions or otherwise amend, modify or supplement any other material of the Offer Conditions or terms of the Offer in a manner adverse to the holders of the Shares. Notwithstanding .
(c) Unless extended as provided in this Agreement, the foregoingOffer shall expire at 12:00 midnight (New York City time) on the date that is twenty Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 0000 Xxx) after the Offer Commencement Date (such time, Sub may, without the consent of “Initial Expiration Time” or such time and any subsequent time to which the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer is extended in accordance with the terms of this Agreement, the “Expiration Time”). Subject to the provisions of Article 8, if any of the Offer Conditions shall is not be satisfied or waivedwaived at the Initial Expiration Time or at any other Expiration Time of the Offer, Buyer shall extend the Offer (the length of such extension period to be determined by Parent or Buyer, subject to clauses (i)-(iii) below) from time to time until such time as such conditions Offer Condition or Offer Conditions are satisfied or waived; provided, however, provided that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are (i) Buyer shall not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until beyond the End Date, (ii) no such condition or conditions are satisfied or waived unless such condition or conditions could individual extension of the Offer shall be for a period of more than ten Business Days, and (iii) Buyer shall not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) at any time that Parent or Buyer is permitted to terminate this Agreement. Buyer shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof or the NASDAQ applicable to the OfferOffer or as may be required by any other Governmental Authority; (iii) provided, that Buyer shall not be required to extend the Offer for any reason on one or more occasions for an aggregate period of not more to a date later than 15 business days beyond the latest End Date. Following expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders Offer, Buyer shall (and the Offer Documents shall so indicate) provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange 1934 Act of not less than five nor more than twenty Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the 1934 Act). The Offer may not be terminated prior to the Expiration Time (as the same may be extended pursuant to this Section 2.01) unless this Agreement is validly terminated pursuant to Section 8.01. If this Agreement is validly terminated pursuant to Section 8.01, Buyer shall promptly (and in any event within 24 hours following such termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Buyer prior to the acceptance for payment and payment for Shares tendered in the Offer, Buyer shall promptly return, and shall cause any depositary acting on behalf of Buyer to return, in each case subject accordance with Applicable Law, all tendered Shares to the right of Parent, Sub or the Company to terminate registered holders thereof. Nothing in this Agreement pursuant Section 2.01(c) shall affect any termination rights under Article 8.
(d) Subject to the terms hereof. Subject and conditions set forth in this Agreement and to the foregoing and applicable law and upon the terms and subject to the conditions satisfaction or waiver of the OfferOffer Conditions, Sub Buyer shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 expiration of the Exchange ActOffer, the "Acceptance Date"all Shares (i) all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment and paid for under the Offer, the “Closing Date” and the acceptance for payment and payment for Shares on the Closing Date, the “Closing”). The Cash Consideration payable in respect of each Share pursuant to the preceding sentence shall be paid net of any applicable tax withholding with respect to the Offer Consideration pursuant to Section 2.09 to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement.
(be) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to As soon as practicable on the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferCommencement Date, Parent and Sub Buyer shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that shall include the Offersummary term sheet required thereby and, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable United States federal securities lawslaws and any other Applicable Law. The Company shall promptly furnish to Parent and Sub agree that Buyer all information concerning the Offer Documents shall comply in all material respects with Company required by the Exchange 1934 Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Each of Parent, Sub Buyer and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that the Offer Documents such information shall have become (or shall have become known to be, or have become, ) false or misleading in any material respect, and . Parent and Sub further agree to take all steps necessary Buyer shall use their reasonable best efforts to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable United States federal securities lawslaws and any other Applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Buyer shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Buyer shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub Buyer or their counsel may receive from time to time from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer Documents promptly after the receipt of such those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Buyer to those comments and to cooperate provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Buyer or their counsel in any discussions or meetings with the Company and its counsel in responding SEC or other Governmental Authorities to any the extent such commentsparticipation is permitted by the SEC or other Governmental Authorities.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none subject to the provisions of this Agreement and the events conditions set forth in Exhibit on Annex A shall have occurredhereto, as promptly as practicable after the date hereof, but in no ------- event later than seven (7) ten business days following the public announcement by Parent and the Company of the Offer and Mergerterms of this Agreement, Merger Sub shall, and Parent Logitech Subsidiary shall cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation ------------ of Merger Sub to, and of Parent Logitech Subsidiary to cause Merger Sub to, consummate the Offer and accept for payment, and pay for, payment any Shares tendered and not withdrawn pursuant to in the Offer shall be subject to the satisfaction of only those conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). on Annex A. The initial expiration date of the ------- Offer shall be the twentieth 20th "business day" (20thas such term is defined in Rule 14d- 1(g)(3) business day under the Exchange Act) following the commencement of the OfferOffer (determined using Rules 14d-1(g)(3) and 14d-2 under the Exchange Act). The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms Merger Sub and subject to the conditions of the Offer. Parent and Sub Logitech Subsidiary expressly reserve the right, in their sole discretion, right to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not, and Logitech Subsidiary shall not cause Merger Sub to, (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, (ii) reduce the Offer PriceCash Portion or reduce the Stock Portion, (iii) impose waive or change the Minimum Condition (as defined in Annex A), (iv) modify in ------- any material manner adverse to the holders of Company Common Stock or add to the conditions to the Offer other than obligation of Merger Sub to, or Logitech Subsidiary to cause Merger Sub to, accept for payment any Shares tendered in the Offer Conditions or modify the Offer Conditions set forth in Annex A, (other than to waive any Offer Conditions to the extent permitted by this Agreement); (ivv) except as provided in the next sentencetwo sentences, extend the Offer beyond any scheduled expiration date; or ------- (vvi) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of SharesOffer. Notwithstanding the foregoing, Merger Sub may, and Logitech Subsidiary may cause Merger Sub to, without the consent of the Company Company, (ix) extend the Offer for any period required by any rule, regulation, interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof; (y) from time to time extend the --- Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer Conditions shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iiiz) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clauses clause (ix) and or (iiy) of this sentence if on such expiration date there shall not have been tendered (and not properly withdrawn) at least 90% of the outstanding Shares on a sufficient number Fully Diluted Basis. Logitech Subsidiary and Merger Sub agree that, if any one or more of Shares the conditions to enable the Offer set forth on Annex A are not satisfied then, provided that such conditions are ------- -------- reasonably capable of being satisfied, Merger to be effected without a meeting Sub shall, at the request of the Company's stockholders , extend the Offer from time to time unless any such condition is no longer reasonably capable of being satisfied or any such event has occurred; provided, however, that in no event shall Merger Sub be required to extend the -------- ------- Offer beyond July 15, 2001. Following expiration of the Offer, Merger Sub may, and Logitech Subsidiary may cause Merger Sub to, make available a "subsequent offering period" in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Sub shall, and Parent Logitech Subsidiary shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer. With respect to any such Shares the Cash Portion shall be net to the seller thereof in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent shall file with the SEC a Registration Statement on Form F-4, which will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act to register the offer and sale of Registered Parent Shares represented by Parent ADSs pursuant to the Offer (as the same may be supplemented or amended, the "Form F-4"). On the date of commencement of the -------- Offer, Logitech Subsidiary and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements any communications filed with the SEC under cover of Schedule TO prior to commencement of the Offer in accordance with Rule 14d-2(b) under the Exchange Act, and as such Schedule TO may be supplemented or amendments theretoamended, the "Schedule TO") with respect to the Offer, which ----------- shall contain as an exhibit or incorporate by reference the Offer offer to Purchase purchase and a related letter of transmittal and summary advertisement (such Schedule TO TO, the Form F-4 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of ParentLogitech Subsidiary, --------------- Merger Sub and the Company agrees to shall promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent each of Logitech Subsidiary and Merger Sub further agree to shall, upon becoming aware that such information shall have become false or misleading in any material respect, take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO, TO and Form F-4 as so corrected, amended or supplemented to be filed with the SEC and for the other Offer Documents, as so correctedamended or supplemented, to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Logitech Subsidiary and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing being filed with the SEC or dissemination disseminated to the stockholders of the Company. Parent Logitech Subsidiary and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Logitech Subsidiary or Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with shall provide the Company and its counsel with a reasonable opportunity to participate in responding the response of Logitech Subsidiary and/or Merger Sub to any such comments. Parent shall not issue certificates or scrip representing fractional Parent ADSs pursuant to the Offer. Logitech Subsidiary will pay cash in lieu of fractional Parent ADSs in accordance with the provision set forth in the last two sentences of Section 2.4(d) hereof.
(c) Logitech Subsidiary and Merger Sub shall, and Logitech Subsidiary shall cause Merger Sub to, provide or cause to be provided to the Exchange Agent (as defined in Section 2.6 below) on, prior to or promptly after the expiration of the Offer (and thereafter on a timely basis) Parent ADRs and funds necessary to make payment for any Shares that Logitech Subsidiary or Merger Sub become obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 8.01 and none of provided further that the events set forth Company is prepared (in Exhibit A shall have occurredaccordance with Section 2.02(c)) to file the Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable but after the date hereof (and in any event no event later than seven (7) business days following 10 Business Days after the date of initial public announcement by Parent and the Company of the Offer and Mergerthis Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence, commence (within the meaning of Rule 14d-2 under of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The obligation of Merger Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, payment and pay for, for any Shares validly tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit Annex A and no other conditions (the "“Offer Conditions") (”). The Company agrees that no Shares held by any of which may its Subsidiaries will be waived tendered pursuant to the Offer.
(b) Merger Sub, or Parent on behalf of Merger Sub, expressly reserves the right to waive, in its sole discretion, in whole or in part by Parent part, any of the Offer Conditions and Sub in their sole discretion, except as expressly provided to make any change in the Offer Conditions) and to the rights terms of Parent and Sub to terminate this Agreement as provided in Section 8.1. The or conditions to the Offer set forth Offer; provided that, unless otherwise provided by this Agreement or previously approved by the Company in Exhibit A are for the sole benefit of Parent and Sub and writing (which approval may be asserted granted or withheld by the Company in its sole discretion), Merger Sub, and Parent and Sub regardless on behalf of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer Merger Sub, shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cashnot, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the rightapplicable Law, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce decrease the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (vii) change the form of consideration payable in the Offer, (iii) decrease the number of Shares sought in the Offer, (iv) impose conditions to the Offer in addition to the Offer Conditions, (other than adding consideration); or (viv) amend or modify any other material terms of the Offer Conditions in a manner adverse to that adversely affects the holders of Shares. , (vi) change or waive the Minimum Tender Condition or (vii) extend or otherwise change the Expiration Date other than as required or permitted by this Agreement.
(c) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, or such subsequent time to which the expiration of the Offer is extended in accordance with this Agreement, the “Expiration Date”).
(d) Notwithstanding anything in this Agreement to the foregoingcontrary, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub may, without the consent of the Company Company, (i) extend the OfferOffer for one or more periods of time of up to 20 Business Days per extension (the length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) if at any then-scheduled Expiration Date any Offer Condition has not been satisfied (and, to the extent permitted, shall not have been waived by Parent) or (ii) elect to provide a Subsequent Offering Period. The Offer Price may be increased, and the Offer may be extended to the extent required by Law in connection with such increase in the Offer Price, in each case without the consent of the Company.
(e) Subject to the terms and conditions of this Agreement, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub, or Parent on behalf of Merger Sub, shall extend the Offer at the request of the Company on one or more occasions for periods of up to 20 Business Days per extension (the length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) up to and including the Outside Date, if at the any then-scheduled or extended expiration date of the Offer Expiration Date any of the Offer Conditions shall have not be been satisfied or waived. In addition, until such time as such conditions are satisfied Merger Sub, or waived; providedParent on behalf of Merger Sub, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period or periods if required by any Law, rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof or the NASDAQ Global Market (“NASDAQ”) applicable to the Offer; .
(iiif) extend Following expiration of the Offer for any reason Offer, Merger Sub (or Parent on its behalf) may, in its sole discretion, provide a subsequent offering period or one or more occasions for an aggregate period extensions thereof (a “Subsequent Offering Period”) in accordance with Rule 14d-11 of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) Exchange Act if, as of this sentence if the commencement of such period, there shall not have been validly tendered a sufficient (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), and not properly withdrawn pursuant to the Offer, that number of Shares necessary to enable permit the Merger to be effected without a meeting of shareholders of the Company's stockholders Company in accordance with Section 253 302A.621 of the General Corporation Law MBCA. The Offer Documents shall provide for the possibility of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more a “subsequent offering periods period”.
(g) Subject to the foregoing, including the requirements of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment A) all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Expiration Date and (B) each Share validly tendered in any Subsequent Offering Period promptly after such dateShare is so tendered. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, regardless of whether Parent and Merger Sub elect expressly reserves the right to provide delay payment for one Shares in order to comply in whole or more subsequent offering periods pursuant to in part with applicable Laws. Any such delay in payment shall be effected in compliance with Rule 14d-11 of 14e-1(c) under the Exchange Act.
(h) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Shares such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code or any other applicable Tax Law. To the extent that amounts are so withheld by Merger Sub, such amounts shall be (a) paid over to the "Acceptance Date"appropriate Governmental Authority and (b) treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made by Merger Sub.
(i) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any change in the number of shares of outstanding Company Common Stock validly tendered by reason of any stock dividend, stock split, recapitalization, combination, exchange of shares, merger, consolidation, reorganization or the like occurring or having a record date on or after the date of this Agreement and not withdrawn pursuant prior to the OfferAcceptance Time; provided, however, that nothing in this Section 2.01(i) shall be construed as permitting the Company to take any such action or to enter into any transaction otherwise prohibited by this Agreement.
(bj) The 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 8.01. If this Agreement is terminated pursuant to Section 8.01, Merger Sub shall, and Parent shall be made cause Merger Sub to, promptly terminate the Offer without accepting any Shares previously tendered. If the Offer is terminated by means of an offer to purchase (the "Offer to Purchase") subject Merger Sub, or this Agreement is terminated prior to the Offer Conditions set forth purchase of Shares in Exhibit A. On the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(k) As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub shall shall: (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including any exhibits thereto, the "“Schedule TO") with respect to the Offer”), which shall contain as an exhibit or incorporate by reference offer to purchase reflecting the Offer to Purchase terms and conditions of this Agreement, and a related form of the letter of transmittal and summary advertisement and other ancillary documents and instruments, if any, in respect of the Offer (such Schedule TO and the documents included therein pursuant to which the Offer will shall be made, together with any amendments or supplements or amendments thereto, and including exhibits thereto, the "“Offer Documents"”), ; (ii) timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes; and Parent and Sub shall (iii) cause the Offer Documents to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on MBCA. The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the date first published, sent Company that may be required by applicable Law 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 is made reasonably requested by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO, as so correctedcorrected or supplemented, to be filed with the SEC and the other Offer Documents, as so correctedcorrected or supplemented, to be disseminated to holders of Shares, in each case as as, and to the extent extent, required by applicable federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing Schedule TO before it is filed with the SEC or dissemination SEC, and Parent and Merger Sub shall give due consideration to the stockholders of reasonable additions, deletions or changes suggested by the CompanyCompany or its counsel. Parent and Merger Sub agree to shall promptly provide the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive after the date hereof from the SEC or its staff with respect to the Offer Documents promptly after the receipt of those comments. The Company and its counsel shall be given a reasonable opportunity to review any written responses to such comments SEC comments, and Parent shall give due consideration to cooperate with the reasonable additions, deletions or changes suggested thereto by the Company and its counsel counsel.
(l) Parent and Merger Sub shall promptly file with the Commissioner of Commerce of the State of Minnesota all materials referred to in responding to any such commentsSection 80B.04 of the Minnesota Statutes.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredVIII, as promptly as practicable but in no event then (i) not later than seven the first Business Day (7) business days following the public announcement by Parent and the Company for purposes of the Offer and Mergerthis Agreement, Sub shall, and Parent shall cause Sub to, commence, within such term having the meaning of given in Rule 14d-2 14d-1 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT")) after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement, and (ii) Purchaser shall, as promptly as practicable, but in no event later than five Business Days after the date of such public announcement, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act"), the Offer to purchase all of the issued and outstanding Shares at a price per share of $17.00, net to the seller in cash. The Offer shall be made pursuant to the Offer Priceto Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing the terms and conditions set forth in this Agreement. The obligation of Sub Purchaser to, and of Parent to cause Sub Purchaser to, commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any Shares properly tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer ConditionsOFFER CONDITIONS") (any of which may be waived in whole or in part by Parent and Sub Purchaser in their its sole discretion, except as expressly provided in provided, however, that Purchaser shall not waive the Offer Conditions) and to Minimum Condition without the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless prior written consent of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this AgreementCompany). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub Purchaser expressly reserve reserves the right, in their sole discretionsubject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Sub neither Parent nor Purchaser shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions add to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Conditions, (iv) except as provided in the next sentence, extend change the Offer beyond any scheduled expiration date; date of the Offer, (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend amend, alter, add or waive any other material terms term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub which shall initially be required to extend 20 Business Days after the commencement date of the Offer, all Offer until such condition or conditions are Conditions have not been satisfied or waived unless such condition or conditions could not reasonably be expected waived, Purchaser may, without the consent of the Company, and at the request of the Company shall, from time to be satisfied by the Outside Date; providedtime, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond Offer, and Purchaser may, without the Outside Date; (ii) consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the SEC staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject only to the conditions of the Offerset forth in Exhibit A, Sub Purchaser shall, and Parent shall cause it Purchaser to, as soon as practicable after the expiration of the Offer, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn that Purchaser becomes obligated to accept for payment pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all supplements as supplemented or amendments theretoamended from time to time, the "Schedule TOSCHEDULE 14D-1") and Schedule 13E-3 (as supplemented or amended from time
(c) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds sufficient to accept for payment, and pay for, any and all Shares that Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(d) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as may be required to be deducted and withheld with respect to the Offermaking of such payment under the Internal Revenue Code of 1986, which shall contain as an exhibit or incorporate by reference the Offer to Purchase and a related letter of transmittal and summary advertisement amended (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 DocumentsCODE"), or under any provision of state, local or foreign tax law; provided, however, that Purchaser shall promptly pay any amounts deducted and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and withheld hereunder to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholdersgovernmental authority, shall not contain any untrue statement of a material fact or omit to state any material fact promptly file all tax returns and reports required to be stated therein or necessary filed in order respect of such deductions and withholding, and shall promptly provide 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 Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt proof of such comments payment and to cooperate with the Company a copy of all such tax returns and its counsel in responding to any such commentsreports.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events conditions set forth in Exhibit A Annex I hereto (the "Tender Offer Conditions") shall have occurredexist after the date hereof and prior to the commencement of the Offer, as promptly as practicable practicable, but in no event not later than seven (7) business days following the public announcement by Parent and the Company of the Offer and MergerMarch 20, Sub 2000, Purchaser shall, and Parent shall cause Sub Purchaser to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer ) an offer to purchase all outstanding Common Shares at the Offer PricePrice and shall take the actions set forth in Section 1.3 below and shall take all other actions as required by any order, writ, injunction, judgment, arbitration award, agency requirement, decree, law, statute, ordinance, rule or regulation (each a "Law"). The obligation of Sub to, and of Parent Purchaser to cause Sub to, consummate the Offer and accept for payment, and payment or pay for, for any Common Shares tendered and not withdrawn pursuant thereto will be subject only to the Offer shall be subject to satisfaction of the conditions set forth in Exhibit A (the "Tender Offer Conditions".
(b) (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in Without the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the prior written consent of the CompanySpecial Committee and the Company Board, Sub Purchaser shall not (i) reduce the number of Shares subject impose conditions to the OfferOffer in addition to the Tender Offer Conditions, (ii) reduce modify or amend the Offer Price, (iii) impose any material conditions to the Offer other than the Tender Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms term of the Offer in a manner adverse to the holders of Common Shares, (iii) reduce the number of Common Shares subject to the Offer, (iv) reduce the Offer Price, (v) except as provided in the following sentence, extend the Offer if all of the Tender Offer Conditions are satisfied or waived, or (vi) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub Purchaser may, in accordance with applicable Law, and without the consent of the Company Special Committee, extend the Offer at any time, and from time to time, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any then-scheduled expiration date of the Offer, Parent any of the conditions to Purchaser's obligation to accept for payment and Sub pay for all Common Shares shall be required to extend the Offer until such condition or conditions are not have been satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Datewaived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the its staff thereof applicable to the Offer; or (iii) extend if all Tender Offer Conditions are satisfied or waived but the Offer for any reason on one or more occasions number of Common Shares tendered, together with Common Shares already beneficially owned by Parent, is at least equal to 66 2/3%, but less than 90%, of the then-outstanding number of Common Shares, for an aggregate period of not more than 15 20 business days (for all such extensions) beyond the latest expiration date that would otherwise be permitted under clauses clause (i) and or (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware(such aggregate period, as amended (the "DGCLSubsequent Offering Period"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate . So long as this Agreement pursuant to is in effect, the terms hereof. Subject to Offer has been commenced and the foregoing and applicable law and upon the terms and subject to the conditions of the OfferTender Offer Conditions have not been satisfied or waived, Sub Purchaser shall, and Parent shall cause it Purchaser to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to cause the Offer (such datenot to expire, regardless subject, however, to Purchaser's and Parent's rights of whether termination under this Agreement. Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of Purchaser shall comply with the obligations respecting prompt payment and announcement under the Exchange Act, . There shall be no withdrawal rights during the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferSubsequent Offering Period.
(bc) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree Purchaser represent that the Offer Documents shall (as defined in Section 1.3(a)) will comply in all material respects with the Exchange Act provisions of applicable federal securities Laws and, on the date filed with the SEC and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no covenant representation is made by Parent or Sub Purchaser with respect to information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer Documents. Each of ParentParent and Purchaser, Sub on the one hand, and the Company Company, on the other hand, agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents it shall be, or have become, become false or misleading in any material respect, respect and Parent and Sub Purchaser further agree agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentsLaws.
Appears in 1 contract
Samples: Merger Agreement (Metropolitan Life Insurance Co/Ny)
The Offer. (a) Provided that this Agreement shall has not have been terminated in accordance with Article VIII Section 9.1 and none 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 events conditions set forth in Exhibit A shall have occurredAnnex I (the “Offer Conditions”) (other than clauses (i) and (ii) and subclauses (e) and (f) of clause (iii) thereof), as promptly as reasonably practicable after the date hereof, but in no any event later than seven within ten (710) business days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub shall, and Parent shall cause Sub to, commenceand Sub shall, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "“Exchange Act"), ”) the Offer at for all of the outstanding Shares for a price per Share equal to the Offer Price. The date on which 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) As promptly as practicable on the later of: (i) the earliest date as of which 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, Sub shall (and Parent shall cause Sub to) accept for payment all Shares tendered pursuant to the Offer (and not validly withdrawn). The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any payment 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 satisfaction or waiver of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date each of the Offer Conditions (and shall not be subject to any other conditions). Promptly after the twentieth (20th) business day following commencement acceptance for payment of any Shares tendered pursuant to the Offer. The Offer Price , Sub shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. pay for such Shares.
(c) Parent and Sub expressly reserve the right, right to waive any of the conditions of the Offer and to make any change in their sole discretion, to modify the terms of or conditions to the Offer, except including without limitation, increasing the Offer Price, provided that, without unless otherwise expressly provided in this Agreement or previously approved by the consent of the CompanyCompany in writing, neither Parent nor Sub shall not shall:
(i) reduce change or waive the Minimum Tender Condition (as defined in Annex I);
(ii) decrease the number of Shares subject sought to be purchased by Sub in the Offer, ;
(iiiii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); ;
(iv) extend or otherwise change the expiration date of the Offer (except as provided set forth in the next sentence, extend the Offer beyond any scheduled expiration date; Section 1.1(d));
(v) change the form of consideration payable in the Offer (other than adding consideration)Offer; or or
(vi) amend or modify any other material of the Offer Conditions or terms of the Offer in a manner adverse that adversely affects, or would reasonably be expected to adversely affect, the holders of Shares.
(d) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Date”) that is twenty (20) business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or its staff or the staff thereof NASDAQ Stock Market that is applicable to the Offer; provided, that in no event shall Sub be required to extend the Offer beyond the Outside Date, (iiiii) if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Sub shall extend the Offer for any reason on one or more occasions for an aggregate period of not more periods ending no later than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares Outside Date, to enable the Merger permit such Offer Condition to be effected without a meeting satisfied (provided, however, that if all of the Company's stockholders in accordance with Section 253 of Offer Conditions other than the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of ParentMinimum Tender Condition are satisfied, Sub or shall have the Company right, but not the obligation, to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable Offer 30 days after the date on which Sub first accepts shares for payment pursuant to all of the Offer Conditions, other than the Minimum Tender Condition, are satisfied; provided, further, that Sub may not exercise such right to terminate the Offer if a Competing Proposal has been publicly announced and not been withdrawn); provided, however, that no individual extension shall be for a period of more than five (such date5) business days (unless otherwise consented in writing by the Company) (the period commencing on the Offer Commencement Date and ending on the Acceptance Time (as hereinafter defined) is referred to as the “Initial Offering Period”), regardless of whether Parent and (iii) following the Initial Offering Period, Sub may, in its sole discretion, elect to provide for a subsequent offering period (and one or more subsequent offering periods pursuant to extensions thereof) in accordance with Rule 14d-11 under the Exchange Act if, immediately following the Acceptance Time, Parent, Sub and their respective Subsidiaries and Affiliates beneficially own less than 90% of the Exchange ActShares outstanding at that time (which shares beneficially owned shall include shares tendered in the Offer and not withdrawn). Subject to the terms and conditions set forth in this Agreement and the Offer, the "Acceptance Date") Parent shall cause Sub to, and Sub shall, accept for payment and pay for all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to during such subsequent offering period promptly after any such Shares are tendered during such subsequent offering period and in any event in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the OfferExchange Act.
(be) The Offer shall may be made by means of an offer terminated prior to purchase its expiration date (the "Offer to Purchase") subject to the Offer Conditions set forth as such expiration date may be extended and re-extended in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file accordance with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"this Agreement), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply but only if this Agreement is validly terminated in all material respects accordance with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentsSection 9.1.
Appears in 1 contract
Samples: Merger Agreement (Asv Inc /Mn/)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated in accordance with Article VIII and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Exhibit A shall have occurredAnnex I hereto (the “Offer Conditions”), as promptly as practicable but in no event later than seven after the date hereof Merger Subsidiary shall commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 0000 Xxx) the rules and regulations thereunder, the "Exchange Act"), Offer. Merger Subsidiary shall use its reasonable best efforts to commence the Offer at within five Business Days after the Offer Pricedate hereof. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions". The date on which Merger Subsidiary commences the Offer is referred to as the “Offer Commencement Date”.
(b) (Merger Subsidiary expressly reserves the right to waive any of which may be waived in whole or in part by Parent the Offer Conditions and Sub in their sole discretion, except as expressly provided to make any change in the Offer Conditions) and to the rights terms of Parent and Sub to terminate this Agreement as provided in Section 8.1. The or conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except ; provided that, without the prior written consent of the Company, Sub which consent may be granted or withheld by the Company in its sole discretion, Merger Subsidiary shall not not:
(i) reduce waive or change the number of Shares subject to the Offer, Minimum Condition (as defined in Annex I);
(ii) reduce decrease the Offer Price, ;
(iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable to be paid in the Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the expiration date of the Offer (other than adding consideration)except as otherwise provided herein; or or
(vi) amend otherwise amend, modify or supplement any other material of the Offer Conditions or terms of the Offer in a manner adverse to the holders of the Shares.
(c) Unless 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 0000 Xxx) after the Offer Commencement Date. Notwithstanding the foregoing, Sub may, without Merger Subsidiary shall extend the consent of the Company Offer (i) extend from time to time if, at the scheduled or extended expiration date of the Offer, if any of the Offer Conditions (other than the Minimum Condition) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived, (ii) from time to time if, at the scheduled or extended expiration date of the Offer any all of the Offer Conditions (other than the Minimum Condition) have been satisfied or waived but the Minimum Condition is not satisfied, for a period of 5 business days (calculated as set forth in Rule 14d-1(g)(3) under the 0000 Xxx) (provided that the Offer shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected extended more than twice in-a-row pursuant to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; this clause (ii)), and (iii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the OfferOffer or any period otherwise required by Applicable Law; (iii) provided that Merger Subsidiary shall not be required to extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be End Date unless Parent or Merger Subsidiary is not then permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the terms hereofOffer beyond the End Date. Subject to the foregoing and applicable law and upon the terms and subject to the conditions Following expiration of the Offer, Sub Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act.
(d) Subject to the terms and conditions set forth in this Agreement, the requirements of Rule 14d-11 of the 1934 Act, and to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax)for, as promptly as practicable (i) after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 expiration of the Exchange ActOffer, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Shares validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment under the Offer, the “Acceptance Date”).
(be) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to As soon as practicable on the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferCommencement Date, Parent and Sub Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that shall include the Offersummary term sheet required thereby and, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a related form of letter of transmittal and summary advertisement reflecting the terms and conditions set forth in this Agreement (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Merger Subsidiary and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that the Offer Documents such information shall have become (or shall have become known to be, or have become, ) false or misleading in any material respect, and . Parent and Sub further agree to take all steps necessary Merger Subsidiary shall use their reasonable best efforts to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Merger Subsidiary shall provide the Company and its counsel with (i) any comments Parentor other communications, Sub whether written or oral, that Parent or Merger Subsidiary or their respective Affiliates or their counsel may receive from time to time from the SEC or its staff with respect to the Offer, the Schedule TO or Offer Documents promptly but in no event later than one Business Day after the receipt of such those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to cooperate provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the Company and its counsel in responding to any such commentsSEC.
Appears in 1 contract
The Offer. (a) Provided that Upon the terms and subject to the conditions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredagreement, as promptly as reasonably practicable following the date hereof, but in any event no event later than seven (7) business days following the tenth Business Day after the initial public announcement by Parent and of the execution of this agreement (subject to the Company of the Offer having timely provided any information required to be provided by it pursuant to section 1.1(i) and Mergersection 1.2(d)), Merger Sub shall, and Parent shall cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunderAct, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation obligations of Sub toMerger Sub, and of Parent to cause Sub toMerger Sub, consummate the Offer and to accept for payment, and pay for, any Shares shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this agreement) of the conditions set forth in Exhibit A annex I (as they may be amended in accordance with this agreement, the "“Offer Conditions"”).
(b) (Parent and Merger Sub reserve the right, to the extent permitted by Law, at any of which may be waived time, to waive, in whole or in part by Parent and Sub in their sole discretionpart, except as expressly provided in the any Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions Condition (other than as a result of any action the Minimum Condition) or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, Offer in any manner; except that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce the maximum number of Shares subject shares of Company Common Stock sought to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Price or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer (other than adding consideration); that are in addition to the Offer Conditions, or (vi) modify or amend any other material terms of the existing Offer Condition in a manner adverse to the holders of Sharesthe Company Common Stock, (v) except as otherwise required or permitted by section 1.1(d), extend or otherwise change the Expiration Time, (vi) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, (vii) increase the Offer Price, except following an Adverse Recommendation Change or the Company’s delivery to Parent of a notice of a Superior Proposal or in the event that Merger Sub is permitted to extend the Offer pursuant to section 1.1(d)(i)(2), or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding The Offer may not be terminated prior to its scheduled Expiration Time, unless this agreement is terminated in accordance with article VII.
(c) The Offer shall initially expire at midnight (New York City time) at the foregoing, Sub may, without the consent end of the Company day that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with section 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer (i) extend if on the Offerthen scheduled Expiration Time, if at the scheduled Minimum Condition has not been satisfied or extended expiration date of the Offer any of the other Offer Conditions shall has not be been satisfied or waivedwaived by Parent or Merger Sub if permitted hereunder, until for one or more occasions in consecutive increments of up to fifteen Business Days each, as determined by Merger Sub in its sole discretion, in order to permit the satisfaction of such time as such conditions are satisfied Offer Conditions (subject to the right of Parent or waivedMerger Sub to waive any Offer Condition, other than the Minimum Condition); provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and (1) Merger Sub shall not be required to extend the Offer until such condition or to a date later than the Outside Date and (2) if all of the Offer Conditions (other than the Minimum Condition and other than those conditions that by their nature are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by at the Outside Date; providedExpiration Time, furtherbut subject to such conditions being able to be satisfied) have been satisfied or waived, that in no event Merger Sub shall Parent and Sub not be required to extend (but notwithstanding anything to the expiration date of the Offer beyond the Outside Date; (iicontrary in this agreement, in its sole discretion may) extend the Offer for any period to a date later than the earlier of (x) the Outside Date and (y) the date that is twenty Business Days after the date that all of the Offer Conditions (other than the Minimum Condition and other than those conditions that by their nature are to be satisfied at the Expiration Time, but subject to such conditions being able to be satisfied) have been satisfied or waived, and (ii) if required by any rule, regulation, interpretation or position of the Securities and Exchange Commission SEC, the staff thereof or the Nasdaq Global Select Market (the "SEC"“Nasdaq”) or the staff thereof applicable New York Stock Exchange (the “NYSE”), except that Merger Sub shall not be required to the Offer; (iii) extend the Offer for to a date later than the Outside Date. No extension pursuant to this section 1.1(d) shall be deemed to impair, limit, or otherwise restrict in any reason on one or more occasions for an aggregate period of not more than 15 business days beyond manner the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting rights of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company parties hereto to terminate this Agreement agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon of article VII.
(e) On the terms and subject to the conditions of this agreement, (i) at or as promptly as practicable following the OfferExpiration Time, Merger Sub shall, and Parent shall cause it Merger Sub to, irrevocably accept for payment (the time of acceptance for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the “Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date"Time”) all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer, in each case without interest and subject to any applicable withholding of Taxes. 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.
(bf) The Offer Price payable in respect of each share of Company Common Stock shall be made by means of an offer to purchase (paid on the "Offer to Purchase") terms and subject to the conditions of this agreement. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) Unless this agreement is terminated pursuant to article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer Conditions set forth prior to any scheduled Expiration Time without the prior written consent of the Company. In the event this agreement is terminated pursuant to article VII, Merger Sub shall promptly following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer or this agreement is terminated in Exhibit A. accordance with this agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares of Company Common Stock to the tendering stockholders in accordance with applicable Law.
(h) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Company Common Stock occurring on or after the date of this agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Company Common Stock the same economic effect as contemplated by this agreement prior to such action.
(i) On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO") with respect to the Offer”), which shall contain as an exhibit or incorporate by reference the Offer an offer to Purchase purchase and a related letter of transmittal and summary advertisement 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 Parent and Sub shall cause to be disseminated the Offer Documents to be disseminated to the holders of Shares Company Common Stock as and to the extent required by applicable United States federal securities lawsLaws. The Company shall promptly furnish or otherwise make available to Parent and Sub agree or Parent’s legal counsel upon request all information concerning the Company that is required by the Exchange Act or other applicable Law to be set forth in the Offer Documents shall comply in and all material respects with other information concerning the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to Company that may 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 reasonably requested by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees to shall promptly correct promptly any information provided supplied by it or on its behalf for use inclusion or incorporation by reference in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Merger Sub further agree to shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Offer Documents and to cause the Schedule TO, Offer Documents as so corrected, amended or supplemented to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all written correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the SEC, on the other hand. Unless there has been an Adverse Recommendation Change, prior to the filing of the Offer Documents with the SEC or 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, and Parent and Merger Sub shall give reasonable consideration to any such comments. Unless the Offer Documents prior to their filing has been terminated in accordance with the SEC terms of this agreement, if Parent or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel receives any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, then each shall use its commercially reasonable efforts to respond promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredVIII, as promptly as reasonably practicable after the date of this Agreement but in no event later than seven the tenth (710th) business days following Business Day after the public announcement by Parent and date hereof (or such later date as the Company of the Offer and Mergerparties may agree in writing), Merger Sub shall, and Parent shall cause Merger Sub to (and the Company shall cooperate with Parent and Merger Sub to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations thereunderpromulgated thereunder (the “Exchange Act”)) the Offer.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the time and date of acceptance for payment, the "Exchange Act"“Acceptance Time”) and promptly following the acceptance of the shares of Company Common Stock for payment pursuant to the Offer, pay (subject to any withholding of Tax pursuant to Section 2.2(g), ) the Offer at Price net to the Offer Priceseller in cash, without interest, for each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Sub to, to (and of Parent to cause Merger Sub to, consummate the Offer and ) accept for payment, and pay forthe Offer Price net to the seller in cash, any Shares 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 conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole satisfaction, or in part waiver by Parent and or Merger Sub in their sole discretionif permitted hereunder, except as expressly provided in of each of the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(bc) The Offer shall be made by means of an offer to purchase (the "“Offer to Purchase"”) subject that contains the terms and conditions of the Offer as set forth in this Agreement, including the Minimum Tender Condition (as defined in Annex I). Parent and Merger Sub expressly reserve the right (but shall not be obligated), at any time and from time to time in their sole discretion, to waive any of the Offer Conditions, to increase the Offer Price or to modify or amend any other terms and conditions of the Offer; provided, that without the written consent of the Company, Parent and Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose additional conditions on the consummation of the Offer, (E) amend or modify any of the Offer Conditions in a manner that adversely affects any holder of shares of Company Common Stock, (F) change or waive the Minimum Tender Condition (or HSR Approval component of the Governmental Approval Condition), (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.1(e) of this Agreement or (H) otherwise amend or modify the Offer in a manner that adversely affects, any holder of shares of Company Common Stock. The failure by Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each right shall be deemed an ongoing right that may be asserted at any time and from time to time.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight, New York time, on the date that is twenty (20) Business Days (determined for this purpose 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 Offer has been extended pursuant to and in accordance with this Agreement, the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If at any then scheduled Expiration Date, any of the Offer Conditions set forth in Exhibit A. clauses (a), (b) or (c)(i) of Annex I hereto shall not have been satisfied or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall (and Parent shall cause Merger Sub to), if so requested by the Company in a written notice delivered to Parent on or prior to the scheduled Expiration Date, extend the Offer for one or more successive periods of up to ten (10) Business Days each, in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent and Merger Sub to waive any Offer Condition (other than the Minimum Tender Condition or the requirement for HSR Approval that is a component of the Governmental Approval Condition) in accordance with this Agreement); provided, that such extension of the Offer does not extend past the earlier of (A) the termination of this Agreement pursuant to Article VIII and (B) January 31, 2013 (which date may be extended at the discretion of either the Company or Parent to not later than March 31, 2013, in the event the Governmental Approval Condition shall not have been satisfied as of such date) (the “Outside Date”);
(ii) Merger Sub may, at its sole discretion, extend the Offer for one or more successive periods of up to ten (10) Business Days each, the length of each such period to be determined by Parent at its sole discretion, to permit any Offer Conditions to be satisfied; provided, that such extension of the Offer shall not extend past the earlier of (A) the termination of this Agreement pursuant to Article VIII and (B) the Outside Date; and
(iii) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for any period or periods required by applicable Law, by interpretation or position of the Securities and Exchange Commission (the “SEC”) or its staff or by the New York Stock Exchange (“NYSE”) that is applicable to the Offer. Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date (including any rescheduled Expiration Date) without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article VIII. Nothing in this Section 1.1 shall affect any of the termination rights set forth in Article VIII.
(f) If fewer than ninety percent (90%) of the number of outstanding shares of Company Common Stock are accepted for payment pursuant to the Offer, Parent and Merger Sub may, and at the request of 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 this Agreement and the Offer, Merger Sub shall (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 2.2(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 “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) In the event that this Agreement is terminated pursuant to Article VIII prior to the Acceptance Time, Merger Sub shall (and Parent shall cause Merger Sub to) (i) within one (1) Business Day of such termination, terminate the Offer, (ii) not acquire any shares of Company Common Stock pursuant to the Offer and (iii) 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) On the date of the commencement of the Offer, Parent and Merger Sub shall prepare and file with the SEC a Tender Offer Statement in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to the Offer, which shall that will contain as an exhibit or incorporate by reference the Offer to Purchase Purchase, the summary advertisement and a form of the 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 amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”), and . Parent and Merger Sub shall as promptly as practicable cause to be disseminated the Offer Documents to be disseminated to holders of Shares as the shares of Company Common Stock in accordance with and to the extent required by applicable federal securities lawsRule 14d-4 under the Exchange Act. Parent and Merger Sub agree that they shall cause the Offer Documents shall 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 shareholders that may be required in connection with any action contemplated by this Section 1.1(h), including such information required by applicable Laws to be set forth in the Offer Documents. No filing of, on or amendment or supplement to, the date first publishedOffer Documents will be made by Parent or Merger Sub, sent 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 given during any “subsequent offering period” (or extension thereof) any information relating to the Company's stockholders, shall Parent, Merger Sub, or any of their respective Affiliates, directors or officers should be discovered by any of the parties hereto, which should be set forth in an amendment or a supplement to the Offer Documents so that such documents would not contain include any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except the party that no covenant is made 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 shareholders 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 amendments or supplements to the Offer Documents or for additional information, and shall promptly supply the Company with copies of all correspondence (including a description of any oral 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 information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Merger Sub further agree shall respond promptly to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from of the SEC or its staff with respect to the Offer Documents promptly after Documents.
(i) Parent shall provide or cause to be provided to Merger Sub on a timely basis the receipt funds necessary to pay for any shares of such comments Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to cooperate with the Company and its counsel in responding to any such commentsOffer.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in paragraph (g) of Exhibit A shall exist or have occurredoccurred and be continuing, as promptly as practicable but reasonably practicable, and in any event no event later than seven (7) business days following the public announcement by Parent and the Company later of the Offer 10th calendar day after the date hereof and MergerNovember 5, 2015 Merger Sub shall, and Parent shall cause Merger Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with including the rules and regulations promulgated thereunder, the "“Exchange Act"”)) the Offer.
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive $1.00 in cash, without interest and subject to any withholding of Taxes required by applicable Law (such amount for each Share or such higher price per Share that may be paid pursuant to the Offer, the Offer at “Share Consideration”).
(c) In the Offer, each Public Warrant accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer Price. shall be exchanged for the right to receive $0.02 in cash, without interest and subject to any withholding of Taxes required by applicable Law (such amount for each Public Warrant or such higher price per Public Warrant that may be paid pursuant to the Offer, the “Public Warrant Consideration”).
(d) [Intentionally Omitted.]
(e) The obligation obligations of Sub toMerger Sub, and of Parent to cause Sub toMerger Sub, consummate the Offer and to accept for payment, payment and pay for, for any Shares or Public Warrants tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction by the Company or waiver by Merger Sub of the conditions set forth in Exhibit A hereto (the "“Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions”) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offerhereof. Parent and Merger Sub expressly reserve reserves the right, in their its sole discretion, to waive any Offer Condition or to modify the terms or conditions of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of Shares subject to the OfferShare Consideration, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than by adding considerationconsideration pursuant to Section 6.2(e); ), (iii) reduce the number of Shares subject to the Offer, (iv) waive or change the Minimum Share Condition, (v) add to the Offer Conditions, (vi) amend any other material terms extend the expiration of the Offer except as required or permitted by Section 1.1(f), or (vii) otherwise modify any Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the holders of Shares. Notwithstanding .
(f) The Offer shall expire in accordance with its terms on the foregoingdate that is 20 Business Days after the commencement of the Offer, except as may otherwise be required by applicable Law; provided, however, that Merger Sub maymay (but shall not be obligated to), without the consent of the Company Company, extend the Offer (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be have been satisfied or waived, for one or more successive periods of up to 20 Business Days per extension until the earlier to occur of (A) the date such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions Conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by (B) January 31, 2016 (the “Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; ”) or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and rules of NASDAQ applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(bg) The Subject to the terms of the Offer shall be made and this Agreement and the satisfaction or waiver by means Merger Sub of an offer to purchase (all of the "Offer to Purchase") subject Conditions, Merger Sub will accept for payment and pay for all Shares and Public Warrants validly tendered and not validly withdrawn pursuant to the Offer Conditions set forth in Exhibit A. On as soon as practicable after the expiration date of commencement of thereof (as the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements same may be extended or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentsextended).
Appears in 1 contract
Samples: Merger Agreement (Perseon Corp)
The Offer. (a) 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 in Exhibit on Annex A hereto (the "Tender Offer Conditions") shall have occurredoccurred and are continuing, as promptly as practicable but in no event later than seven (7) business days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub shall, shall and Parent shall cause 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 thereunder, the "Exchange Act"), ) the Offer at as promptly as reasonably practicable (but in no event later than five (5) Business Days after the Offer Price. The obligation first public announcement of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to by the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this AgreementCompany). The initial expiration date of the Offer shall be the twentieth Business Day from and after the date the Offer is commenced (20th) business day following commencement of the Offer"Initial Expiration Date"). The Offer Price obligation of Sub to accept for payment and to pay for any Shares tendered shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions 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 OfferCompany. Parent and Sub expressly reserve the right, in their sole discretion, right to modify the terms of the Offer, except thatincluding, without limitation, to extend the Offer beyond any scheduled expiration date; provided, however, that neither Parent nor Sub shall, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares subject to the OfferOffer or waive the Minimum Condition, (ii) reduce the Offer Price, (iii) impose any material additional conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Offer, (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (viv) amend make any other material change to the terms of the Offer in a manner adverse to (including the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO"Conditions) with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading materially adverse in any material respect, and Parent and Sub further agree manner to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.the
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable but in no event later than seven (7) five business days following after the date of the public announcement by Parent and the Company of the Offer and Mergerthis Agreement, Sub shall, and Parent shall cause Sub to, commence, within commence the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), Offer. The initial expiration date for the Offer at the Offer Priceshall be August 29, 1997. The obligation of Sub to, and of Parent to cause Sub to, 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 Parent and Sub in their its sole discretion, except provided that, without the consent of the Company, Sub shall not waive the Minimum Condition (as expressly provided defined in the Offer ConditionsExhibit A)) and to the rights of Parent terms and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve reserves the right, in their sole discretion, right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions amend or add to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Conditions, (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; Offer, (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company Company, (iA) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; Offer and (iiiC) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clauses clause (iA) and or (iiB) of this sentence sentence, if on such expiration date there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting at least 90% of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities lawsoutstanding Shares. Parent and Sub agree that if all of the Offer Documents shall comply in all material respects with the Exchange Act and Conditions are not satisfied on any scheduled expiration date of the Offer Documentsthen, on provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the date first publishedOffer from time to time until such conditions are satisfied or waived, sent or given to the Company's stockholders, provided that Sub shall not contain any untrue statement of a material fact or omit to state any material fact be required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in extend the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.beyond
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII IX and none of the events set forth in Exhibit ANNEX A hereto shall have occurredoccurred and be existing, as promptly as practicable but in no event later than seven reasonably practicable, Purchaser shall commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause 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"), ) the Offer to acquire all the outstanding Shares at the Offer Price. The obligation a price of Sub to$19.50 per Share, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, subject to applicable withholding of taxes, without interest thereon(such price, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, or such higher price per Share as may be paid in their sole discretion, to modify the terms of the Offer, except that, without being referred to herein as the consent of the Company, Sub shall not "OFFER PRICE"). Subject to (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms satisfaction of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) Minimum Condition and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting satisfaction or waiver of the Company's stockholders other conditions set forth in ANNEX A hereto, Purchaser shall consummate the Offer in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the its terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment Shares validly tendered pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant as soon as Purchaser is legally permitted to the Offer.
(b) do so under applicable law. The Offer shall be made by means of an offer to purchase (the "Offer to PurchaseOFFER TO PURCHASE") and shall be subject to the Offer Conditions Minimum Condition and the other conditions set forth in Exhibit A. On ANNEX A hereto, and shall reflect, as appropriate, the date other terms set forth in this Agreement. Parent and Purchaser expressly reserve the right, in their sole discretion, subject to compliance with the Exchange Act, to waive any such condition and to make any other changes in the terms and conditions of commencement the Offer; PROVIDED, HOWEVER, that Parent and Purchaser shall not (i) amend or waive the Minimum Condition, (ii) decrease the Offer Price, (iii) decrease the maximum number of Shares to be purchased in the Offer or (iv) amend any other term or condition of the Offer in any manner or impose any term or condition that is adverse to the holders of the Shares without the written consent of the Company (such consent to be authorized by the Company Board or a duly authorized committee thereof). It is agreed that the terms and conditions of the Offer, including, but not limited to, the conditions set forth in ANNEX A hereto, are for the benefit of Parent and Sub Purchaser and may be asserted by Parent and Purchaser regardless of the circumstances giving rise to any such condition.
(b) The initial expiration date of the Offer shall be the date which is 20 business days after the commencement date of the Offer. Notwithstanding the foregoing, in the event that any condition to the Offer set forth in ANNEX A hereto shall not have been satisfied or waived at the scheduled or any extended expiration date of the Offer, Purchaser shall (unless otherwise notified by the Company), and Purchaser shall otherwise be entitled to, extend the expiration date of the Offer two times in increments of up to 10 business days each (unless otherwise agreed by Parent and the Company) until the earliest to occur of (x) the satisfaction or waiver of each such condition, (y) the termination of this Agreement in accordance with its terms and (z) either November 13, 2000, if the condition set forth in clause (i) of the first paragraph of ANNEX A shall not have been satisfied, or October 16, 2000 if any other condition set forth in ANNEX A hereto shall not have been satisfied; PROVIDED, HOWEVER, that Purchaser shall not be required to extend the Offer as provided in this sentence unless each such condition is reasonably capable of being satisfied. In addition, without limiting the foregoing, Purchaser may, without the consent of the Company, extend the expiration date of the Offer for up to 10 business days if, on the scheduled or any extended expiration date of the Offer, the Shares validly tendered pursuant to the Offer and not withdrawn are sufficient to satisfy the Minimum Condition but total less than 90% of the outstanding Shares, notwithstanding that all the conditions to the Offer set forth in ANNEX A hereto have been satisfied, so long as Purchaser waives the satisfaction of any of the conditions to the Offer (other than the conditions set forth in paragraphs (a) and (c) of ANNEX A hereto) that subsequently may not be satisfied during any such extension of the Offer.
(c) As soon as practicable on the date the Offer is commenced (the "OFFER COMMENCEMENT DATE"), Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements or amendments thereto, the "Schedule SCHEDULE TO") with respect to the Offer, which . The Schedule TO shall contain as an exhibit or shall incorporate by reference the Offer to Purchase and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule TO and the documents included therein pursuant to which TO, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"), and . Parent and Sub Purchaser shall cause to be disseminated mail the applicable Offer Documents to holders the stockholders of Shares the Company as and to soon as practicable after filing with the extent required by applicable federal securities lawsSEC. Parent and Sub agree that the The Offer Documents shall comply in all material respects with the Exchange Act provisions of applicable federal securities laws. Each of Parent and the Offer DocumentsPurchaser, on the date first publishedone hand, sent or given to and the Company's stockholders, on the other hand, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents which shall be, or have become, become false or misleading in any material respect, and Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Parent and Purchaser shall give the Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with being filed with, or sent to, the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub Purchaser agree to provide the Company and its counsel any comments Parent, Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments comments.
(d) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to purchase all the Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
(e) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to cooperate the Offer such amounts as may be required to be deducted and withheld with respect to the making of such payment under the Code or under any provision of state, local or foreign tax law; PROVIDED, HOWEVER, that Purchaser shall promptly pay any amounts deducted and withheld hereunder to the applicable Governmental Entity, shall promptly file all Tax Returns and reports required to be filed in respect of such deductions and withholdings subject to extensions permitted by applicable law, and shall promptly provide to the Company proof of such payment and its counsel in responding to any a copy of all such commentsTax Returns and reports.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII On the terms and none of the events set forth in Exhibit A shall have occurred, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (this TFA, the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer Offeror shall be the twentieth (20th) business day following commencement of effect the Offer. The Offeror agrees with the Company that the price payable by the Offeror for the Shares validly tendered in and not properly withdrawn under the Offer Price (the Tendered Shares) shall be net to the seller USD 1.70 per Tendered Share, in cash, without interest thereon, upon the terms and subject (such amount or any other amount per Tendered Share to be paid pursuant to the conditions Offer in accordance with this TFA, the Offer Consideration). The Offer Consideration shall be paid net of any applicable withholding Taxes in accordance with Clause 3.5(b).
(b) The value of the OfferOffer Consideration is on the basis that no dividend or other distribution, whether in cash or assets (other than any dividend or other distribution within the scope of Clause 3.1(d)), by the Company to the holders of Ordinary Shares is declared, made or paid between the date of this TFA and the Closing Date. Parent In the event that the Company, without the prior written consent of the Offeror, declares, makes or pays such a dividend or other distribution after the date of this TFA and Sub with a record date for entitlement to payment thereof on or before the Closing Date, the Offeror may reduce the Offer Consideration accordingly.
(c) The Offeror expressly reserve reserves the rightright at any time to, in their its sole discretion, waive, in whole or in part, any of the Offer Conditions and to modify make any change in the terms of or conditions to the Offer, except Offer not inconsistent with this TFA; provided that, without the prior written consent of the Company, Sub the Offeror shall not not:
(i) reduce decrease the number of Shares subject to the OfferOffer Consideration, except as otherwise expressly permitted by Clauses 3.1(b) and 3.1(d);
(ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer Consideration;
(other than adding consideration); iii) decrease the number of Ordinary Shares sought under the Offer;
(iv) impose additional conditions to the Offer;
(v) amend, modify or (vi) amend supplement any other material of the Offer Conditions or terms of the Offer in a manner adverse adverse, or reasonably expected to be adverse, to any Allego Shareholder; or
(vi) terminate the holders Offer or accelerate, extend or otherwise change the Expiration Time, in each case, except as provided in Clause 3.4.
(d) In the event that, during the period between the date of Shares. Notwithstanding this TFA and the foregoingExpiration Time, Sub maythe number of outstanding Ordinary Shares is changed into a different number of Ordinary Shares as a result of a conversion, stock split, including a reverse stock split, stock dividend or distribution, or other similar transaction, then the Offer Consideration shall be equitably adjusted, without the consent of the Company (i) extend the Offerduplication, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until to reflect such time as such conditions are satisfied or waivedchange; provided, howeverthat, that notwithstanding anything herein to the contraryin any case, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub nothing in this Clause 3.1(d) shall be required construed to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or permit the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to take any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") action with respect to its securities that is otherwise prohibited by the Offerterms of this TFA. For the avoidance of doubt, which shall contain as an exhibit or incorporate by reference the Offer to Purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein any adjustment pursuant to which the Offer this Clause 3.1(d) will be made, together with not result in any supplements increase or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and decrease to the extent required by applicable federal securities laws. Parent and Sub agree that the aggregate Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given Consideration payable to the Company's stockholders, shall not contain any untrue statement of Allego Shareholders taken as 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 Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentswhole.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 8.01 and none nothing shall have occurred that would render any of the events conditions set forth in Exhibit Annex A shall have occurredhereto incapable of being satisfied, as promptly as practicable (but in no event later than seven that five (75) business days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement), Sub shall, and Parent Purchaser shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation of Sub to, and of Parent ) an offer to cause Sub to, consummate the Offer and accept purchase for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A cash (the "Offer ConditionsOffer") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless all of the circumstances giving rise to any such conditions issued and outstanding shares of Common Stock (other than as the "Shares") at a result price of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be $8.79 per Share, net to the seller in cash, without interest thereoninterest. For purposes of this Agreement, upon the terms term "Transaction Consideration" shall mean $8.79 per Share in cash or any higher price as shall be paid in respect of the Shares in the Offer. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered shall be subject to only the conditions set forth in Annex A hereto (any or all of which may, subject to the conditions of provisions hereof, be waived by Parent or Purchaser, subject to applicable law). Without the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the prior written consent of the Company, Sub Purchaser shall not (i) reduce decrease the Transaction Consideration with respect to any Shares, (ii) decrease the number of Shares subject to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (iv) add to or change the conditions to the Offer set forth in Annex A, (other than adding consideration); v) waive the Minimum Condition (as defined in Annex A) or (vi) amend make any other material change in the terms or conditions of the Offer. Parent and Purchaser expressly reserve the right to waive any condition (other than the Minimum Condition) specified in Annex A or to increase the Transaction Consideration. Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, if the conditions set forth in Annex A are not satisfied or, to the extent permitted hereby, waived by Purchaser as of the date the Offer would otherwise have expired, then, except to the extent that such conditions are incapable of being satisfied, Purchaser will extend the Offer from time to time until the earlier of the consummation of the Offer in a manner adverse to or the holders of Shares. Notwithstanding date which is twenty (20) business days from the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended original expiration date of the Offer any (such date, the "Final Date"). Purchaser shall, subject to the terms and conditions of the Offer Conditions shall Offer, accept for payment Shares validly tendered and not be satisfied or waived, until such time withdrawn as such conditions are satisfied or waivedsoon as it is legally permitted to do so under applicable law; provided, however, that notwithstanding anything herein Purchaser shall be entitled to extend the contrary, Offer one or more times beyond the Final Date for an aggregate period of up to ten (10) business days if any of on the Final Date the conditions to the Offer are not set forth in Annex A have been satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if but there shall not have been tendered a sufficient that number of Shares to enable the Merger to be effected without a meeting which would equal at least ninety percent (90%) of the Company's stockholders in accordance with Section 253 issued and then outstanding Shares. Purchaser shall be obligated to consummate the Offer immediately upon reaching such ninety percent (90%) threshold. Such extended date shall then be the Final Date for purposes of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the this Agreement. The Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shallagrees that it will not tender, and Parent shall cause will not permit any of its subsidiaries to tender, any Shares held by it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to or any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn subsidiary pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall has not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredVIII, as promptly as practicable after the date of this Agreement, but in no event later more than seven ten Business Days after the date of this Agreement, Merger Sub shall (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Merger Sub to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934Act) the Offer; provided, as amended (together however, that Merger Sub shall not be required to commence the Offer if the Company is not prepared to file the Schedule 14D‑9 with the rules SEC on the same day as, and regulations thereundersubstantially contemporaneously with, the "Exchange Act"), Merger Sub’s filing of the Offer at Documents with the Offer Price. The obligation of Sub to, SEC.
(b) Upon the terms and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A this Agreement, including the prior satisfaction of the Minimum Condition (the "Offer Conditions") (any of which may be waived as defined in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer ConditionsAnnex I) and to the rights satisfaction or waiver by Merger Sub of Parent and Sub to terminate this Agreement as provided in Section 8.1. The the other conditions to the Offer set forth in Exhibit A are for Annex I (collectively, the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement“Offer Conditions”). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer (such datein accordance with its terms and accept for payment, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Actpromptly thereafter pay for, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer.
(bc) The Offer shall be made by means of an offer to purchase (the "“Offer to Purchase"”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition, and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company (which the Company may withhold in its sole discretion), Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares subject to the Offer; (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and Merger Sub may waive the Minimum Condition only with the prior written consent of the Company (which the Company may withhold in its sole discretion). The Offer may not be terminated or withdrawn prior to the Expiration Date, unless this Agreement is terminated in accordance with Article VIII.
(d) Unless extended pursuant to, and in accordance with, the terms of this Agreement, the Offer shall expire at midnight (New York City time) at the end of the day on the date that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer is first commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Offer has been extended beyond the Initial Expiration Date pursuant to, and in accordance with, this Agreement, the date and time to which the Offer has been so extended (such Initial Expiration Date, or such later date and time to which the Offer has been extended pursuant to, and in accordance with, this Agreement, the “Expiration Date”).
(e) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time as follows: (i) if on the applicable Expiration Date, any of the Offer Conditions set forth (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, then Merger Sub shall extend the Offer for successive periods of not more than ten Business Days each (as determined by Merger Sub), or such other period as may be agreed by Parent and the Company, to permit the satisfaction of such Offer Conditions; and (ii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in Exhibit A. On this Section 1.1(e) shall (A) require Merger Sub to, and without the Company’s prior written consent (which the Company may withhold in its sole discretion) Merger Sub shall not be permitted to, extend the Offer beyond the End Date or (B) be deemed to impair, limit or otherwise restrict in any manner the right of the Parties to terminate this Agreement pursuant to the terms of Section 8.1. Neither Parent nor Merger Sub shall extend the Offer in any manner other than pursuant to, and in accordance with, the provisions of this Section 1.1(e) without the prior written consent of the Company (which the Company may withhold in its sole discretion).
(f) The Offer Price shall be adjusted proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Shares occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement is terminated in accordance with the terms hereof, then Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer, and shall cause any depository acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(h) As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to the Offer, which that shall contain as an exhibit or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement (such Schedule TO advertisement, if any, and the any other ancillary Offer documents included therein and instruments pursuant to which the Offer will shall be made, together with any supplements or amendments thereto, and (ii) cause the "Offer Documents"), to Purchase and Parent and Sub shall cause related documents to be disseminated the Offer Documents to all holders of Shares as and to the extent required by applicable federal securities lawsShares. Parent and Merger Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (collectively, the “Offer Documents shall comply Documents”) filed by either Parent or Merger Sub with the SEC to comply, in all material respects respects, with the Exchange Act and other applicable Law. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it or any of its Representatives for use in the Offer Documents, on the date first published, sent or given Documents if and to the Company's stockholders, extent that such information shall not contain any untrue statement of a material fact have become false or omit to state misleading in any material fact required respect, and shall supplement the information contained in the Offer Documents to be stated therein or include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by and Parent or and Merger Sub with respect further shall use their best efforts to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in cause the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, corrected or supplemented to be filed with the SEC and the other Offer Documents, as so corrected, to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company shall promptly furnish or otherwise make available in writing to Parent and Merger Sub or Parent’s legal counsel all information concerning the Company and the Company’s stockholders that is required by applicable Law or is reasonably requested by Parent to be included in the Offer Documents. The Company and its legal counsel shall be given reasonable opportunity to review and comment upon on the Offer Documents, and Parent and Merger Sub shall incorporate into the Offer Documents any reasonable comments received from the Company or its legal counsel, prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer. The Company and its legal counsel shall be given reasonable opportunity to cooperate review and comment on any proposed responses to any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents, and Parent and Merger Sub shall incorporate into such responses any reasonable comments received from the Company or its legal counsel, prior to the furnishing of such responses to the SEC. Parent and Merger Sub shall provide the Company and its legal counsel with reasonable opportunity to participate in responding any discussions or meetings with the SEC or its staff.
(i) Parent shall cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any such commentsShares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 8.1 hereof and none of the events set forth in Exhibit A Annex I hereto shall have occurredoccurred and be existing, Parent shall cause Purchaser to commence and Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act") the Offer as promptly as practicable reasonably practicable, but in no event later than seven (7) business days (as defined in Rule 14d-1 under the Exchange Act) following the initial public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within execution of this Agreement (treating the meaning of Rule 14d-2 under business day on which such public announcement occurs as the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"first business day), the Offer at the Offer Price. The obligation of Sub to, Parent and of Parent Purchaser to cause Sub to, consummate the Offer and accept for payment, and pay for, payment any of the Shares tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction of those conditions set forth in Exhibit A (Annex I. Parent expressly reserves the "Offer Conditions"right from time to time, subject to Sections 1(b) (and 1(d) hereof, to waive any of which may be waived in whole such condition, to increase the Per Share Amount, or in part by Parent and Sub in their sole discretion, except as expressly provided to make any other changes in the Offer Conditions) terms and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price Per Share Amount shall be net to the seller in cash, without interest thereon, upon the terms and subject to reduction only for any applicable Federal back-up withholding or stock transfer taxes payable by the conditions seller. The Company agrees that none of the Offer. Parent and Sub expressly reserve Shares held by the right, in their sole discretion, Company or any of its Subsidiaries (as hereinafter defined) will be tendered pursuant to modify the terms of the Offer, except that, without .
(b) Without the prior written consent of the Company, Sub Parent shall not (i) reduce decrease the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Per Share Amount or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding considerationto increase the Per Share Amount); , (ii) decrease the number of Shares sought, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I), (iv) impose additional conditions to the Offer, (v) amend any one or more of the conditions set forth in Annex I to broaden the scope of such condition or conditions or otherwise in any manner adverse to the holders of the Shares, or (vi) amend any other material terms term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon Upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, Purchaser will accept for paymentpayment and purchase, as promptly soon as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 terms of the Exchange ActOffer, all of the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant prior to the expiration of the Offer.
(bc) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to having only the Offer Conditions conditions set forth in Exhibit A. On Annex I hereto. As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO (together with all amendments and supplements or amendments thereto, the "Schedule TO") with respect to the OfferOffer that will comply in all material respects with the provisions of Schedule TO and all applicable Federal securities laws, which shall and will contain (including as an exhibit exhibit) or incorporate by reference the Offer to Purchase and a forms of the related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madedocuments, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the "Offer Documents"), and . Parent and Sub Purchaser agree promptly to correct the Schedule TO or the Offer Documents if and to the extent that it shall cause have become false or misleading in any material respect (and the Company, with respect to be disseminated written information supplied by it specifically for use in the Schedule TO or the Offer Documents, shall promptly notify Parent of any required corrections of such information and shall cooperate with Parent and Purchaser with respect to correcting such information) and to supplement the information provided by it specifically for use in the Schedule TO or the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree include any information that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or become 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 Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule TO, as so correctedcorrected or supplemented, to be filed with the SEC and the other Offer Documents, as so correctedcorrected or supplemented, to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO or any Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub agree to Purchaser shall provide the Company and its counsel in writing with any comments Parent, Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
(d) The Offer to Purchase shall provide for an initial expiration date of twenty (20) business days from the date of commencement. Purchaser agrees that it shall not terminate or withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived. If at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived, Parent may, from time to time extend the expiration date of the Offer until the date such conditions are satisfied or earlier waived and Parent becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer; provided, however, that the expiration date of the Offer may not be extended beyond February 28, 2001 without the consent of the Company. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the expiration date of the Offer (as it may be extended) for any period required by applicable rules and regulations of the SEC in connection with an increase in the consideration to be paid pursuant to the Offer, (ii) extend the expiration date of the Offer (as it may be extended) for up to ten (10) business days, if on such expiration date the conditions for the Offer described on Annex I hereto shall have been satisfied or earlier waived, but the number of Shares that have been validly tendered and not withdrawn represents less than 90 percent of the then issued and outstanding Shares on a fully diluted basis, provided, that if Purchaser elects to extend the expiration date of the Offer as set forth in this clause (ii), the obligation of Purchaser, and of Parent to cause Purchaser, to accept for payment, purchase and pay for all of the Shares tendered pursuant to the Offer and not withdrawn shall be subject only to the Minimum Condition and the conditions set forth in Section (a) of Annex I hereto, and (iii) provide for a subsequent offering period with respect to the Offer pursuant to Rule 14d-11; provided, however, that in any case specified above the expiration date of the Offer may not be extended beyond February 28, 2001 without the consent of the Company. Parent and Purchaser agree that if all of the conditions to the Offer set forth on Annex I are not satisfied on any scheduled expiration date, then if all such conditions are reasonably capable of being satisfied prior to, February 28, 2001, Purchaser shall extend the Offer from time to time (each such individual extension not to exceed ten (10) business days after the previously scheduled expiration date) until such conditions are satisfied or waived; provided, however, that Purchaser shall not be required to, and shall not without the consent of the Company, extend the Offer beyond February 28, 2001.
Appears in 1 contract
The Offer. (a) 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 in Exhibit on Annex A hereto (the "Tender Offer Conditions") shall have occurredoccurred and are continuing, as promptly as practicable after the date of this Agreement (but in no any event not later than seven (7) business days following Business Days after the first public announcement by Parent of the execution and delivery of this Agreement), Sub shall commence (within the Company meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer. The initial expiration date of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, be the twentieth (20th) Business Day following the date the Offer is commenced within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer Price. The obligation of Sub to, to accept for payment and of Parent to cause Sub to, consummate pay for any Ordinary Shares tendered in 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 "Tender Offer Conditions") (, any of which which, subject to the proviso below, may be waived by Parent or Sub in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Tender Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Tender Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the OfferConditions. Parent and Sub expressly reserve the right, in their sole discretion, right to modify the terms of the Offer, except thatprovided, however, that neither Parent nor Sub shall (and Parent shall cause Sub not to), without the prior written consent of the Company, Sub shall not (i) reduce the number of Ordinary Shares subject to be purchased pursuant to the Offer, (ii) reduce the Ordinary Share Offer Price, (iii) impose any material additional conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Offer, (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer, (v) make any change to the terms of the Offer, including without limitation the Tender Offer (other than adding consideration); or Conditions, which is materially adverse in any manner to the holders of the Ordinary Shares, (vi) amend any other material terms of or waive the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoingMinimum Condition, except that Parent or Sub may, without at any time, amend the consent Minimum Condition to equal the number of Ordinary Shares representing a majority of the Company total number of votes of the outstanding Ordinary Shares on a fully-diluted basis or (ivii) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waivedOffer, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to Parent or Sub may extend the contrary, if any expiration date of the conditions Offer: (A) as required by any rule, regulation or interpretation of the Commission; or (B) in the event that any condition to the Offer are is not satisfied or and, to the extent permitted herein, is not waived on any as of the scheduled expiration date of the Offer, Parent and Sub for such successive periods for up to ten (10) Business Days at a time (or such longer period as shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied approved by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend Company) until the expiration date earlier of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares acceptance for payment of any Ordinary Shares pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase date (the "Offer to PurchaseTermination Date") subject to the Offer Conditions set forth in Exhibit A. On that is sixty (60) days from the date of commencement of the Offer. Notwithstanding anything in the foregoing to the contrary, the Company may require Sub to extend the Offer on one occasion for a maximum period of ten (10) days if at the scheduled expiration date of the Offer, the Tender Offer Conditions (assuming for this purpose that the Minimum Condition has not been amended in accordance with clause (vi) of the proviso contained above in this Section 2.1(a)) have not been satisfied. In addition, notwithstanding anything in this Section 2.1(a) to the contrary, if not already disclosed in the Offer to Purchase (as defined below), Parent and Sub shall file with may amend the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, as defined below) to permit the "Schedule TO") with respect to the Offer, which shall contain announcement of a subsequent offering period (as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply term is defined in all material respects with Rule 14d-1 promulgated under the Exchange Act and (the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments."Subsequent Offer
Appears in 1 contract
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredVIII, as promptly as reasonably practicable after the date of this Agreement but in no event later than seven the tenth (710th) business days following Business Day after the public announcement by Parent and date hereof (or such later date as the Company of the Offer and Mergerparties may agree in writing), Merger Sub shall, and Parent shall cause Merger Sub to (and the Company shall cooperate with Parent and Merger Sub to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with amended, and the rules and regulations thereunder, promulgated thereunder (the "Exchange Act")) the Offer.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the "Offer Conditions"), Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the time and date of acceptance for payment, the Offer at "Acceptance Time") and promptly following the acceptance of the shares of Company Common Stock for payment pursuant to the Offer, pay (subject to any withholding of Tax pursuant to Section 2.2(g)) the Offer PricePrice 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. The obligation of Merger Sub to, to (and of Parent to cause Merger Sub to, consummate the Offer and ) accept for payment, and pay forthe Offer Price net to the seller in cash, any Shares 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 conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole satisfaction, or in part waiver by Parent and or Merger Sub in their sole discretionif permitted hereunder, except as expressly provided in of each of the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(bc) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject that contains the terms and conditions of the Offer as set forth in this Agreement, including the Minimum Tender Condition (as defined in Annex I). Parent and Merger Sub expressly reserve the right (but shall not be obligated), at any time and from time to time in their sole discretion, to waive any of the Offer Conditions, to increase the Offer Price or to modify or amend any other terms and conditions of the Offer; provided, that without the written consent of the Company, Parent and Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose additional conditions on the consummation of the Offer, (E) amend or modify any of the Offer Conditions in a manner that adversely affects any holder of shares of Company Common Stock, (F) change or waive the Minimum Tender Condition (or HSR Approval component of the Governmental Approval Condition), (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.1(e) of this Agreement or (H) otherwise amend or modify the Offer in a manner that adversely affects, any holder of shares of Company Common Stock. The failure by Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each right shall be deemed an ongoing right that may be asserted at any time and from time to time.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight, New York time, on the date that is twenty (20) Business Days (determined for this purpose 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 Offer has been extended pursuant to and in accordance with this Agreement, the "Expiration Date").
(e) The Offer shall be extended from time to time as follows:
(i) If at any then scheduled Expiration Date, any of the Offer Conditions set forth in Exhibit A. clauses (a), (b) or (c)(i) of Annex I hereto shall not have been satisfied or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall (and Parent shall cause Merger Sub to), if so requested by the Company in a written notice delivered to Parent on or prior to the scheduled Expiration Date, extend the Offer for one or more successive periods of up to ten (10) Business Days each, in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent and Merger Sub to waive any Offer Condition (other than the Minimum Tender Condition or the requirement for HSR Approval that is a component of the Governmental Approval Condition) in accordance with this Agreement); provided, that such extension of the Offer does not extend past the earlier of (A) the termination of this Agreement pursuant to Article VIII and (B) January 31, 2013 (which date may be extended at the discretion of either the Company or Parent to not later than March 31, 2013, in the event the Governmental Approval Condition shall not have been satisfied as of such date) (the "Outside Date");
(ii) Merger Sub may, at its sole discretion, extend the Offer for one or more successive periods of up to ten (10) Business Days each, the length of each such period to be determined by Parent at its sole discretion, to permit any Offer Conditions to be satisfied; provided, that such extension of the Offer shall not extend past the earlier of (A) the termination of this Agreement pursuant to Article VIII and (B) the Outside Date; and
(iii) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for any period or periods required by applicable Law, by interpretation or position of the Securities and Exchange Commission (the "SEC") or its staff or by the New York Stock Exchange ("NYSE") that is applicable to the Offer. Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date (including any rescheduled Expiration Date) without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article VIII. Nothing in this Section 1.1 shall affect any of the termination rights set forth in Article VIII.
(f) If fewer than ninety percent (90%) of the number of outstanding shares of Company Common Stock are accepted for payment pursuant to the Offer, Parent and Merger Sub may, and at the request of 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 this Agreement and the Offer, Merger Sub shall (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 2.2(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 "subsequent offering period" in a manner consistent with the terms of this Section 1.1(f).
(g) In the event that this Agreement is terminated pursuant to Article VIII prior to the Acceptance Time, Merger Sub shall (and Parent shall cause Merger Sub to) (i) within one (1) Business Day of such termination, terminate the Offer, (ii) not acquire any shares of Company Common Stock pursuant to the Offer and (iii) 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) On the date of the commencement of the Offer, Parent and Merger Sub shall prepare and file with the SEC a Tender Offer Statement in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "Schedule TO") with respect to the Offer, which shall that will contain as an exhibit or incorporate by reference the Offer to Purchase Purchase, the summary advertisement and a form of the 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 amendments and supplements or amendments thereto and including exhibits thereto, the "Offer Documents"), and . Parent and Merger Sub shall as promptly as practicable cause to be disseminated the Offer Documents to be disseminated to holders of Shares as the shares of Company Common Stock in accordance with and to the extent required by applicable federal securities lawsRule 14d-4 under the Exchange Act. Parent and Merger Sub agree that they shall cause the Offer Documents shall 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 shareholders that may be required in connection with any action contemplated by this Section 1.1(h), including such information required by applicable Laws to be set forth in the Offer Documents. No filing of, on or amendment or supplement to, the date first publishedOffer Documents will be made by Parent or Merger Sub, sent 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 given during any "subsequent offering period" (or extension thereof) any information relating to the Company's stockholders, shall Parent, Merger Sub, or any of their respective Affiliates, directors or officers should be discovered by any of the parties hereto, which should be set forth in an amendment or a supplement to the Offer Documents so that such documents would not contain include any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except the party that no covenant is made 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 shareholders 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 amendments or supplements to the Offer Documents or for additional information, and shall promptly supply the Company with copies of all correspondence (including a description of any oral 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 information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Merger Sub further agree shall respond promptly to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from of the SEC or its staff with respect to the Offer Documents promptly after Documents.
(i) Parent shall provide or cause to be provided to Merger Sub on a timely basis the receipt funds necessary to pay for any shares of such comments Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to cooperate with the Company and its counsel in responding to any such commentsOffer.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 8.1 and none no event shall have occurred or circumstance shall exist which constitutes a material failure to satisfy any of the events conditions set forth in Exhibit Annex A shall have occurredhereto, as promptly as practicable practicable, but in no event later than seven the fifth (75th) business days day following the public announcement by Parent and the Company of the Offer and Mergerterms of this Agreement, Sub shall, and Parent Acquisition shall cause Sub to, commence, within commence the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent Acquisition to cause Sub to, consummate the Offer and accept for payment, payment and pay for, any for Shares tendered and not withdrawn pursuant to the Offer shall be subject to the condition that a number of Shares representing not less than a majority of the outstanding Shares shall have been validly tendered and not withdrawn prior to the Expiration Date (as defined below) of the Offer (the "MINIMUM CONDITION"), and further there shall have been no material failure to satisfy any of the conditions set forth in Exhibit ANNEX A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1hereto. The conditions to the Offer set forth Per Share Amount payable in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be paid net to the seller tendering stockholders in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. There shall not be deductible from the Per Share Amount any expenses or costs of Ultimate Parent, Parent and Sub or Acquisition associated with, arising out of or in connection with the transaction contemplated by this Agreement or otherwise. Acquisition expressly reserve reserves the rightright in its sole discretion to waive, in their sole discretionwhole or in part, at any time or from time to time, any condition to the Offer (other than the Minimum Condition), to modify increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer, except ; provided that, without unless previously approved by the consent of Company in writing, no change may be made that decreases the CompanyPer Share Amount, Sub shall not (i) reduce waives or changes the number of Shares subject to the OfferMinimum Condition, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change changes the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms Offer, reduces the number of the Offer Shares to be purchased in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the imposes conditions to the Offer are not satisfied in addition to those set forth in Annex A hereto or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of extends the Offer beyond the Outside Date; Date (ii) extend the as defined in Section 8.1(c)). The Offer for any period required by any rule, regulation, interpretation or position shall be scheduled to expire as of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting end of the Company's stockholders in accordance with Section 253 of twentieth (20th) day following the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions commencement of the Offer, Sub shallsubject to any extensions thereof permitted in this Agreement (the "EXPIRATION DATE"). If the Minimum Condition is satisfied and the conditions set forth in Annex A hereto are satisfied in all material respects or waived by Acquisition as of the Expiration Date, and Parent then Acquisition shall cause it to, promptly accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the OfferOffer (the "TENDER CLOSING"); provided, that if the Minimum Condition is satisfied and the other conditions set forth in Annex A hereto are satisfied in all material respects or waived by Acquisition as of the Expiration Date but fewer than 90% of the outstanding Shares have been validly tendered and not withdrawn at such time, then Acquisition may, on more than one occasion, extend the Expiration Date for a period of ten (10) business days but not beyond the Outside Date. Unless this Agreement has been terminated pursuant to Article VIII, if the Minimum Condition has not been satisfied or the conditions set forth in Annex A hereto have not been satisfied in all material respects or waived by Acquisition as of the Expiration Date (including any extensions thereof), then Acquisition shall extend the Offer for an additional period of not less than five (5) business days and not more than twenty (20) business days; provided, that Acquisition shall not be required to extend the Offer beyond the Outside Date.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On As soon as practicable on the date of commencement of the Offer, Ultimate Parent, Parent and Sub Acquisition shall file with the SEC Securities and Exchange Commission (the -2- 6 "COMMISSION") a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") 14D-1 with respect to the Offer, Offer which shall will contain as an exhibit or incorporate by reference the Offer offer to Purchase purchase and a form of the 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 DocumentsOFFER DOCUMENTS"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Ultimate Parent, Sub Parent, Acquisition 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 that the Offer Documents any such information shall be, or have become, become false or misleading in any material respectrespect and Ultimate Parent, and Parent and Sub Acquisition each further agree agrees to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected to be filed with the SEC Commission and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent Commission and Sub agree to provide the Company and its counsel shall be provided with any comments Ultimate Parent, Sub or Parent, Acquisition and their counsel may receive from the SEC Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
Samples: Merger Agreement (Techforce Corp)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredpursuant to Article 8, as promptly as practicable after the date hereof, but in no event later than seven the later of (7A) business days fifteen Business Days following the public announcement date of this Agreement and (B) five Business Days following the date of satisfaction or waiver by Parent Buyer and the Company of the Offer and Mergercondition set forth under Part 1 of Annex I hereto (the “Pre-Launch Condition”), Sub shall, and Parent Buyer shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 0000 Xxx) the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation Pre-Launch Condition is for the benefit of Sub both Buyer and the Company and may be waived only by the Company and Buyer jointly (either in whole or in part) by written agreement. No party may invoke the Pre-Launch Condition if the non-satisfaction of such condition is caused by a breach of that party of any of its obligations under this Agreement. The obligations of Buyer to, and of Parent to cause Sub Buyer to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A Part 2 of Annex I hereto (the "“Offer Conditions"”). The date on which Buyer commences the Offer is referred to as the “Offer Commencement Date”.
(b) (Buyer expressly reserves the right at any of which may be waived time to, its sole discretion, waive, in whole or in part by Parent part, any of the Offer Conditions and Sub in their sole discretion, except as expressly provided to make any change in the Offer Conditions) and to the rights terms of Parent and Sub to terminate this Agreement as provided in Section 8.1. The or conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except ; provided that, without the prior written consent of the Company, Sub Buyer shall not not:
(i) reduce waive or change the number of Shares subject to the Offer, Minimum Condition (as defined in Annex I);
(ii) reduce decrease the Offer Price, Consideration;
(iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable to be paid in the Offer Offer;
(other than adding consideration)iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time except as otherwise provided in this Agreement; or or
(vi) amend impose additional Offer Conditions or otherwise amend, modify or supplement any other material of the Offer Conditions or terms of the Offer in a manner adverse to the holders of the Shares. Notwithstanding .
(c) Unless extended as provided in this Agreement, the foregoingOffer shall expire at 12:00 midnight (New York City time) on the date that is twenty Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 0000 Xxx) after the Offer Commencement Date (such time, Sub may, without the consent of “Initial Expiration Time” or such time and any subsequent time to which the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer is extended in accordance with the terms of this Agreement, the “Expiration Time”). Subject to the provisions of Article 8, if any of the Offer Conditions shall is not be satisfied or waivedwaived at the Initial Expiration Time or at any other Expiration Time of the Offer, Buyer shall extend the Offer (the length of such extension period to be determined by Parent or Buyer, subject to clauses (i)-(iii) below) from time to time until such time as such conditions Offer Condition or Offer Conditions are satisfied or waived; provided, however, provided that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are (i) Buyer shall not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until beyond the End Date, (ii) no such condition or conditions are satisfied or waived unless such condition or conditions could individual extension of the Offer shall be for a period of more than ten Business Days, and (iii) Buyer shall not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) at any time that Parent or Buyer is permitted to terminate this Agreement. Buyer shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof or the NASDAQ applicable to the Offer; (iii) Offer or as may be required by any other Governmental Authority; provided, that Buyer shall not be required to extend the Offer for any reason on one or more occasions for an aggregate period of not more to a date later than 15 business days beyond the latest End Date. Following expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders Offer, Buyer shall (and the Offer Documents shall so indicate) provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange 1934 Act of not less than five nor more than twenty Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the 1934 Act). The Offer may not be terminated prior to the Expiration Time (as the same may be extended pursuant to this Section 2.01) unless this Agreement is validly terminated pursuant to Section
8.01. If this Agreement is validly terminated pursuant to Section 8.01, Buyer shall promptly (and in any event within 24 hours following such termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Buyer prior to the acceptance for payment and payment for Shares tendered in the Offer, Buyer shall promptly return, and shall cause any depositary acting on behalf of Buyer to return, in each case subject accordance with Applicable Law, all tendered Shares to the right of Parent, Sub or the Company to terminate registered holders thereof. Nothing in this Agreement pursuant Section 2.01(c) shall affect any termination rights under Article 8.
(d) Subject to the terms hereof. Subject and conditions set forth in this Agreement and to the foregoing and applicable law and upon the terms and subject to the conditions satisfaction or waiver of the OfferOffer Conditions, Sub Buyer shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 expiration of the Exchange ActOffer, the "Acceptance Date"all Shares (i) all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment and paid for under the Offer, the “Closing Date” and the acceptance for payment and payment for Shares on the Closing Date, the “Closing”). The Cash Consideration payable in respect of each Share pursuant to the preceding sentence shall be paid net of any applicable tax withholding with respect to the Offer Consideration pursuant to Section 2.09 to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement.
(be) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to As soon as practicable on the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferCommencement Date, Parent and Sub Buyer shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect to that shall include the Offersummary term sheet required thereby and, which shall contain as an exhibit or incorporate by reference exhibits, the Offer to Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable United States federal securities lawslaws and any other Applicable Law. The Company shall promptly furnish to Parent and Sub agree that Buyer all information concerning the Offer Documents shall comply in all material respects with Company required by the Exchange 1934 Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference set forth in the Offer Documents. Each of Parent, Sub Buyer and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that the Offer Documents such information shall have become (or shall have become known to be, or have become, ) false or misleading in any material respect, and . Parent and Sub further agree to take all steps necessary Buyer shall use their reasonable best efforts to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable United States federal securities lawslaws and any other Applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Buyer shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Sub agree to Buyer shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Sub Buyer or their counsel may receive from time to time from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer Documents promptly after the receipt of such those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Buyer to those comments and to cooperate provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Buyer or their counsel in any discussions or meetings with the Company and its counsel in responding SEC or other Governmental Authorities to any the extent such commentsparticipation is permitted by the SEC or other Governmental Authorities.
Appears in 1 contract
The Offer. (a) Provided that Subject to the conditions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable but in no event later than seven (7) business days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub shall, and Parent shall cause Sub to, commence, commence the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the applicable rules and regulations thereunder, of the Securities and Exchange Commission (the "Exchange ActSEC") to purchase for cash all of the shares of Company Common Stock at a price of $4.00 per share, net to seller in cash (such price, or such higher price as may be paid in the Offer, being referred to herein as the "OFFER PRICE"), the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate commence the Offer and accept for payment, and pay for, any Shares shares of Company Common Stock tendered and not withdrawn pursuant to the Offer shall be are subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). A. The initial expiration date of the Offer shall be the twentieth (20th) 20th business day following the commencement of the OfferOffer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")). The Offer Price shall be net Sub expressly reserves the right to waive any condition to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to Offer or modify the terms of the Offer, except that, without the consent of the Company, Sub shall not and Parent shall not permit Sub to (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Priceprice per share of Company Common Stock to be paid pursuant to the Offer, (iii) impose waive or change the Minimum Tender Condition (as defined in Exhibit A), (iv) modify in any material conditions manner adverse to the Offer other than the Offer Conditions holders of Company Common Stock or modify the Offer Conditions (other than to waive any Offer Conditions add to the extent permitted by this Agreement); conditions set forth in Exhibit A, (ivv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; or (vvi) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of SharesOffer. Notwithstanding the foregoing, Sub may, without the consent of the Company Company, (iA) extend the OfferOffer for the shortest time periods which are necessary, but in no event more than an additional 60 days, in one or more periods of not more than five business days, if at the scheduled or extended expiration date Parent and Sub are not in material breach of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, Agreement and if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; providedcapable of being satisfied, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer and (C) if at the scheduled or any extended expiration date of the Offer less than 80% of the Fully Diluted Shares (as defined in Exhibit A) have been validly tendered and not withdrawn in the Offer; (iii) , extend the Offer for any reason on one or more occasions for an aggregate a period of not more than 15 ten business days in the aggregate beyond the latest expiration date that would otherwise be permitted under clauses clause (iA) and or (iiB) of this sentence if there shall not have been tendered sentence. In addition, Sub may make available a sufficient number of Shares "subsequent offering period" for up to enable the Merger to be effected without a meeting of the Company's stockholders 20 days in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to . In the right of Parent, Sub event that the Minimum Tender Condition has not been satisfied or waived at the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions scheduled expiration date of the Offer, Sub shall, and Parent shall cause it Sub to, extend the expiration date of the Offer in such increments as Sub may determine until the earliest to occur of (w) the satisfaction or waiver of such condition, (x) Parent reasonably determines that such condition to the Offer is not capable of being satisfied on or prior to the Outside Date (as defined in Section 8.01(b)(i)), (y) the termination of this Agreement in accordance with its terms and (z) the Outside Date. On the terms and subject to the conditions of the Offer and this Agreement, Sub shall accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase 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 DocumentsOFFER DOCUMENTS"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to shall promptly correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and each of Parent and Sub further agree to 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 to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Sharesthe Company's shareholders, in each case as and to the extent required by applicable federal Federal securities laws. The Parent and Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing being filed with the SEC or dissemination disseminated to the stockholders shareholders of the Company. Parent and Sub agree to shall provide the Company and its counsel in writing with any comments Parent, 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 to cooperate with shall provide the Company and its counsel with a reasonable opportunity to participate in responding the response of Parent or Sub to any such comments.
(c) Upon the acceptance for payment by Sub of any shares of Company Common Stock tendered pursuant to the Offer, Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Sub becomes obligated to purchase pursuant to the Offer. Subject to Section 5.02(b), the Company hereby approves of and consents to the Offer, the Merger and the other transactions contemplated by this Agreement (collectively, the "TRANSACTIONS").
(d) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer, including an information statement (such Schedule 14D-9, as amended and supplemented from time to time, the "SCHEDULE 14D-9"), describing the recommendations referred to in Section 3.04(b), or any permitted withdrawal or modification in accordance with Section 5.02(b), and shall mail the Schedule 14D-9 (including the information statement) to the holders of Company Common Stock. Each of the Company, Parent and Sub shall promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company's shareholders, in each case as and to the extent required by applicable Federal securities laws. The Company shall provide Parent and its counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments.
(e) In connection with the Offer, the Company shall cause its transfer agent to furnish Sub as promptly as is reasonably practicable with mailing labels containing the names and addresses of the record holders of Company Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of shareholders, security position listings and computer files and all other information as Sub may reasonably request in the Company's possession or control regarding the beneficial owners of Company Common Stock, and shall furnish to Sub such information and assistance (including updated lists of shareholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to the Company's shareholders. Subject to the requirements of applicable Law (as defined in Section 3.05), and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Transactions, Parent and Sub shall hold in confidence pursuant to the Confidentiality Agreement (as defined in Section 6.02) the information contained in any such labels, listings and files, shall use such information only for the purpose of communicating the Offer and disseminating any other documents necessary to consummate the Offer, the Merger and the other Transactions and, if this Agreement shall be terminated, shall, upon request, deliver to the Company all copies of such information then in their possession or control or the control of their agents or representatives.
Appears in 1 contract
Samples: Merger Agreement (Technisource Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Article VIII Section 11.01 and none (ii) the Company is not then in material breach of the events set forth in Exhibit A shall have occurredSection 2.01(f), as promptly as practicable after the date hereof (but in no event later than seven November 29, 2021), Merger Sub shall (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Merger Sub to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 1000 Xxx) the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A Annex I hereto (the "“Offer Conditions"”). The date on which Merger Sub commences the Offer is referred to as the “Offer Commencement Date.”
(b) (Merger Sub expressly reserves the right to waive any of which may be waived in whole or in part by Parent the Offer Conditions and Sub in their sole discretion, except as expressly provided to make any change in the Offer Conditions) and to the rights terms of Parent and Sub to terminate this Agreement as provided in Section 8.1. The or conditions to the Offer Offer; provided that, Merger Sub shall waive the condition set forth in Exhibit A are for clause (H) of Annex I if, but only if, directed by the sole benefit of Parent Company at any time and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise from time to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cashtime; provided, without interest thereonfurther, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not not:
(i) reduce waive or change the number Minimum Condition (as defined in Annex I) or the condition set forth in clause (H) of Shares subject to the Offer, Annex I;
(ii) reduce decrease the Offer Price, Price other than in the manner required by Section 3.07;
(iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable to be paid in the Offer Offer;
(other than adding consideration)iv) decrease the number of Shares sought to be purchased in the Offer;
(v) extend or otherwise change the Expiration Time except as otherwise provided herein; or or
(vi) amend impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or other material terms of the Offer in a any manner that broadens such conditions or is otherwise adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(bc) The Offer shall be made by means of an offer to purchase expire immediately after 11:59 p.m. (New York City time) on the "Offer to Purchase") subject to the Offer Conditions date that is 20 business days (calculated as set forth in Exhibit A. On Rule 14d-1(g)(3) under the 1000 Xxx) after the Offer Commencement Date (such time, the “Expiration Time”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.01 (in which event the term “Expiration Time” shall mean the earliest time and date of commencement of that the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so correctedextended, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such commentsexpire).
Appears in 1 contract
The Offer. Section 2.1 The Offer. ---------
(a) 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 in Exhibit Annex A hereto (the "Tender Offer Conditions") shall have occurredoccurred and be existing, as promptly as practicable but in no event later than seven (7) business days following the public announcement by on or prior to June 9, 2000, Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause 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 thereunder, the "Exchange Act"), ) the Offer at the Offer Price. The obligation obligations of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, payment and to pay for, for any Shares Common Stock tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Tender Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) Conditions and to the rights terms and conditions of Parent and Sub to terminate this Agreement as provided in Section 8.1Agreement. The conditions to the Tender Offer set forth in Exhibit A 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 conditions Tender Offer Conditions and may be waived by Parent and Sub in whole or in part, in their sole discretion; provided, however, that Sub shall not waive the Minimum Condition (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date defined in Annex A) without the prior written consent of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the OfferCompany. Parent and Sub expressly reserve the right, in their sole discretion, right to modify the terms of the Offer, except thatincluding, without limitation, to extend the Offer beyond any scheduled expiration date but in no event beyond the Termination Date; provided, however, that Sub shall not, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares subject shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material additional conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); Offer, (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (viv) amend make any other material change to the terms of the Offer in a manner which is materially adverse to the holders of SharesCommon Stock. Notwithstanding the foregoing, Sub may, without the consent Assuming prior satisfaction or waiver of the Company (i) extend conditions to the Offer, if at the scheduled or extended expiration date Sub shall accept for payment all of the Offer any shares of Common Stock which are validly tendered and not withdrawn on or prior to the expiration of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waivedOffer; provided, however, that notwithstanding anything herein Sub may from time to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to time extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable up to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Termination Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Tender Offer Conditions set forth in Exhibit A. On Conditions. As soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub shall file with the SEC Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule TO (together with all amendments and supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which . The Schedule TO shall contain (included as an exhibit exhibit) or shall incorporate by reference the Offer to Purchase and Purchase, a form of the related letter of transmittal (the "Letter of Transmittal") and a summary advertisement advertisement, as well as all other documents, information and exhibits required by law (which Schedule TO, Offer to Purchase, Letter of Transmittal and such Schedule TO other documents, information and the documents included therein pursuant to which the Offer will be madeexhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree represent and warrant to the Company that the Offer Documents Schedule TO shall comply in all material respects with the Exchange Act and the Offer Documentsprovisions of applicable federal securities laws and, on the date filed with the Commission and the date first published, sent or given to the Company's stockholdersholders of the Common Stock, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading, except that no covenant representation or warranty is made by Parent or Sub with respect to any information supplied by the Company or any of its stockholders specifically in writing for inclusion or incorporation by reference in the Offer DocumentsSchedule TO. Each of Parentthe Company, Sub on the one hand, and Parent and Sub, on the Company other hand, agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC Commission and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Sharesthe Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to shall provide the Company and its counsel with copies of the Offer Documents prior to filing them 9 with the Commission and with copies of any written comments Parent, Parent and Sub or their counsel may receive from the SEC Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with shall provide the Company and its counsel an opportunity to participate in responding the response of Parent or Sub to any such comments, including by participating with Parent and Sub or their counsel in any discussions with the Commission or its staff.
Appears in 1 contract
Samples: Merger Agreement (New England Business Service Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 8.1, and none of subject to the events set forth in Exhibit A shall have occurredCompany having provided the information required to be provided pursuant to Section 1.2(b), as promptly as practicable but after the Agreement Date, and in no any event later than seven on or before February 14, 2023 (7) business days following the public announcement by Parent and date of such commencement, the Company of the “Offer and MergerCommencement Date”), Merger Sub shall, shall (and Parent shall cause Merger Sub to, commence, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer to purchase all of the Shares at a price per share equal to the Offer Price. The Parties hereby acknowledge and agree that the Offer shall constitute an “offer” as defined in NRS 92A.133(4)(e).
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, consummate the Offer and accept for payment, payment and pay for, for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Merger Sub or Parent, of (x) the condition that at least that number of Shares validly tendered and not validly withdrawn prior to the Expiration Time of the Offer and received by the depositary for the Offer (determined in accordance with NRS 92A.133(g)), when added to any Shares already owned by Mxxxxx Sub, if any, equals a majority of the voting power of the then issued and outstanding Shares (the “Minimum Condition”), and (y) the other conditions set forth in Exhibit Annex A (the "conditions described in clauses (x) and (y) are collectively referred to as the “Offer Conditions") (any ”). Subject to the satisfaction, or waiver by Merger Sub or Parent, of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment (the time of such acceptance for payment, the “Acceptance Time”) and to the rights of Parent pay for all Shares validly tendered and Sub to terminate this Agreement as provided in Section 8.1. The conditions not validly withdrawn pursuant to the Offer set forth as promptly as practicable (and in Exhibit A are for any event within one (1) Business Day) after the sole benefit of Parent Expiration Time and Sub and may be asserted by Parent and Sub regardless of in any event in compliance with Rule 14e-1(c) under the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement)Exchange Act. The initial expiration date Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net paid to the seller of such Share in cash, without interest thereoninterest, upon subject to the deduction or withholding of any Taxes as contemplated by this Agreement, on the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, set forth in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any . The time scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer payment for any reason on one or more occasions Shares accepted for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate payment pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shallOffer is referred to in this Agreement as the “Offer Closing”, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect Closing occurs is referred to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of in this Agreement as the Exchange Act, the "Acceptance “Offer Closing Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.”
(bc) The Offer shall be made by means of an offer to purchase that describes the terms and conditions of the Offer as set forth in this Agreement. Merger Sub and Parent expressly reserve the right to waive (in whole or in part) any Offer Condition at any time and from time to time, to increase the 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 the Company, Merger Sub shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the number of Shares to be purchased in the Offer, (iv) amend or modify any of the Offer Conditions in a manner that is adverse to the holders of Shares or impose conditions to the Offer in addition to the Offer Conditions, (v) amend, modify or waive the Minimum Condition or (vi) extend or otherwise change the Expiration Time in a manner other than pursuant to and in accordance with this Agreement.
(d) Unless extended as provided in this Agreement, the Offer shall initially be scheduled to expire at midnight, New York City time, at the end of the day on the date that is twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the Offer Commencement Date (the "Offer “Initial Expiration Time”, and as such date and time may be extended, the “Expiration Time”). Notwithstanding anything to Purchase") the contrary set forth in this Agreement but subject to the Parties’ respective rights to terminate this Agreement in accordance with Article VIII:
(i) Merger Sub shall extend the Offer Conditions set forth for any minimum period required by any rule or, regulation of the SEC or its staff, any rule or regulation of Nasdaq (including in Exhibit A. On order to comply with Rule 14e-1(b) promulgated under the date Exchange Act in respect of commencement any change in the per share price) or as may be necessary to resolve any comments of the SEC, or any other applicable Law, in each case, applicable to the Offer, the Schedule 14D-9 or the Offer Documents;
(ii) in the event that any of the conditions to the Offer set forth on Annex A, other than the Minimum Condition and those that by their nature are to be satisfied only at the Expiration Time, are not satisfied or waived (to the extent permitted hereunder) as of any then-scheduled Expiration Time, Merger Sub may, and if requested by the Company shall (and Parent shall cause Merger Sub to), extend the Offer for one or more successive extension periods of up to ten (10) Business Days each (or any longer period as the Parties hereto may agree) in order to permit the satisfaction of all of the conditions to the Offer; and
(iii) in the event that all of the conditions to the Offer set forth on Annex A have been satisfied or waived (if permitted hereunder), except that the Minimum Condition has not been satisfied, as of any then-scheduled Expiration Time, Merger Sub may (and, if requested by the Company, shall, and Parent shall cause Merger Sub to) extend the Offer for one or more successive extensions of ten (10) Business Days each (or any longer period as may be approved in advance by the Company), it being understood and agreed that Mxxxxx Sub shall file not be required to extend the Offer pursuant to this clause (iii) on more than three (3) occasions, but may, in its sole discretion, elect to do so; and
(x) For clarity, none of clauses (i), (ii) and (iii) of this Section 1.1(d) shall be deemed to impair, limit or otherwise restrict in any manner the right of any Party to terminate this Agreement pursuant to and in accordance with the SEC terms of Article VIII, and (y) notwithstanding herein to the contrary, in no event shall Merger Sub be required or, without the prior written consent of the Company, be permitted to extend the Offer beyond the earlier of (1) the Termination Date and (2) the valid termination of this Agreement in accordance with Section 8.1.
(e) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company, except in connection with a valid termination of this Agreement permitted in accordance with the terms of Section 8.1. In the event that this Agreement is validly terminated pursuant to Section 8.1, whether or not the Expiration Time has occurred, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four hours of such termination), irrevocably and unconditionally terminate the Offer, not acquire any Shares pursuant thereto, and cause any depositary acting on its behalf to promptly return in accordance with applicable Law all tendered Shares to the registered holders thereof.
(f) On the Offer Commencement Date, Merger Sub and Parent shall (i) file or cause to be filed 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 or amendments and exhibits thereto, the "“Schedule TO"”) with respect to the Offer, which shall that will contain as an exhibit or incorporate by reference the Offer related offer to Purchase and a purchase the Shares pursuant to the Offer, the form of the related letter of transmittal and transmittal, the summary advertisement (such Schedule TO and the other ancillary Offer documents included therein pursuant to which the Offer will be mademade and instruments pursuant to which the Offer will be made (collectively, and together with any all exhibits, amendments and supplements or amendments thereto, the "“Offer Documents"”); and (ii) cause the Schedule TO and related Offer Documents to be disseminated to holders of Shares in accordance with applicable federal securities Laws. The Company shall promptly furnish to Merger Sub and Parent in writing all information concerning the Company and its stockholders that may be required by applicable Law to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 1.1(f). Except with respect to any amendments filed in connection with a Change of Recommendation, the Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents (including any amendment or supplement thereto) prior to the filing thereof with the SEC, and Parent and Merger Sub shall cause give reasonable and good faith consideration to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is comments made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documentslegal counsel. Each of ParentMerger Sub, Sub Parent and the Company agrees to promptly correct promptly any information provided by it for use in the Offer Documents if if, and to the extent that the Offer Documents such Party becomes aware that, such information shall be, or have become, become false or misleading in any material respect, respect or as otherwise required by applicable Law. Merger Sub and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, Offer Documents as so corrected, corrected (if applicable) to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC Upon receipt of any written or dissemination to the stockholders of the Company. oral comments by Mxxxxx Sub, Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC any Governmental Authority or its staff with respect to the Offer Documents Documents, or any request from any Governmental Authority or its staff for amendments or supplements to the Offer Documents, Merger Sub and Parent agree to (i) promptly after the receipt of such comments and to cooperate with provide the Company and its counsel in responding with a copy of any such written comments or requests (or a description of any such oral comments or requests); (ii) provide the Company and its counsel a reasonable opportunity to comment on any proposed response thereto, and to give reasonable and good faith consideration to any such commentscomments made by the Company or its legal counsel; (iii) provide the Company and its counsel an opportunity to participate with Merger Sub, Parent or their counsel in any materials discussions or meetings with any Governmental Authority or its staff regarding the Offer Documents; and (iv) provide the Company with copies of any written comments or responses submitted by Merger Sub and Parent in response thereto.
(g) 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, merger, issuer tender offer, exchange of shares or other like change with respect to Company Common Stock occurring on or after the Agreement Date and prior to Merger Sub’s acceptance for payment of, and payment for, Company Common Stock tendered in the Offer, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action and shall as so adjusted from and after the date of such event, be the Offer Price; provided, however, that nothing in this Section 1.1(g) shall be construed to permit the Company to take any action with respect to the Company Common Stock that is prohibited by the terms of this Agreement.
(h) All fees, costs and expenses (except for the fees, costs and expenses of each Party’s respective advisors) in connection with commencing or conducting the Offer, including any costs for engaging any solicitation agent, placing any tombstone advertisement, or filing fees or mailing expenses associated with the preparation, filing and mailing of the Offer Documents and the Schedule 14D-9, shall be borne by the Company.
Appears in 1 contract
The Offer. (a) Provided that Upon the terms and subject to the conditions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable (but in any event no event later than seven fifteen (715) business days following Business Days) after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Sub shall, and Parent Purchaser shall cause Sub to, commence, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant Offer.
(b) Subject to the Offer shall be subject to satisfaction, or waiver by Purchaser, of the conditions set forth in Exhibit A (the "“Offer Conditions"”), Purchaser shall (and Parent shall cause Purchaser to) (i) at or as promptly as practicable following the Expiration Time (in any event, no later than the Business Day immediately following the date on which the Expiration Time occurs), accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) and (ii) at or as promptly as practicable following the Expiration Time (and, in any event, within three (3) Business Days following the date on which may the Expiration Time occurs), pay the aggregate Offer Price (by delivery of funds to the depositary for the Offer) for, all Company Shares validly tendered and not validly withdrawn pursuant to the Offer and Parent shall provide or cause to be waived provided to Purchaser the consideration necessary for Purchaser to comply with such obligations to accept for payment and pay for such Company Shares. The Parties agree that the Offer and Purchaser’s obligation to accept for payment and pay for all Company Shares validly tendered and not validly withdrawn pursuant to the Offer in accordance with the foregoing are not, and shall not be, subject to any condition other than the Offer Conditions.
(c) Purchaser expressly reserves the right, at any time, in its sole discretion, to waive, in whole or in part by Parent and Sub in their sole discretionpart, except as expressly provided in the any Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action Condition or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Sub Purchaser shall not not:
(i) reduce the number of Company Shares subject to the Offer, ;
(ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Price or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer;
(iii) change, modify or waive the Minimum Tender Condition, the Termination Condition, or the conditions set forth in clause (b) or clause (d) of Exhibit A;
(iv) add to the Offer Conditions or make any Offer Condition more difficult to satisfy;
(v) extend the Expiration Time other than adding consideration); or in accordance with this Agreement;
(vi) provide a “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act; or
(vii) otherwise amend any other material terms of the Offer in a any manner adverse to the holders of Shares. Notwithstanding the foregoingCompany Stockholders (other than Parent, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled Purchaser or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC"their respective Affiliates) or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
Samples: Merger Agreement (RPX Corp)
The Offer. (a) Provided that this Agreement shall not have been validly terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredSection 11.01, as promptly as practicable but (and in no any event later than seven within 10 days) after the date hereof, Merger Subsidiary shall commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 0000 Xxx) the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The Merger Subsidiary’s obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, payment and pay for, any for Shares validly tendered and not properly withdrawn Table of Contents 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 this Agreement) shall be subject solely to the satisfaction or waiver (if permitted hereunder) of the conditions set forth in Annex I hereto (the “Offer Conditions”) and shall not be subject to the satisfaction of any other conditions. The date on which Merger Subsidiary commences the Offer is referred to as the “Offer Commencement Date”. Merger Subsidiary shall not (and Parent shall not permit Merger Subsidiary to) terminate or otherwise withdraw the Offer unless and until this Agreement has been validly terminated pursuant to and in accordance with Section 11.01. In the event that this Agreement is validly terminated pursuant to and in accordance with Section 11.01, Merger Subsidiary shall promptly (and in any event within one Business Day after the date of such termination) terminate and withdraw the Offer and, notwithstanding the satisfaction or waiver of any Offer Conditions, shall not accept for payment or pay for any Shares theretofore tendered in the Offer.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and, 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 shall be subject prior to the conditions set forth in Exhibit A (expiration of the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretionOffer, except as expressly provided in other than the Offer Conditions;
(ii) and to waive or change the rights of Parent and Sub to terminate this Agreement Minimum Condition (as provided defined in Section 8.1. The conditions to Annex I);
(iii) decrease the Offer set forth Price;
(iv) change the form of consideration to be paid in Exhibit A are for the sole benefit Offer;
(v) decrease the number of Parent and Sub and may be asserted by Parent and Sub regardless of Shares sought in the circumstances giving rise to any such conditions Offer;
(other than as a result of any action vi) extend or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial otherwise change the expiration date of the Offer shall be the twentieth except as otherwise provided herein; or
(20thvii) business day following commencement amend or modify any of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions Conditions or amend or modify any of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent in either case in a manner that broadens any of the CompanyOffer Conditions, Sub shall not (i) reduce the number of Shares subject would require Merger Subsidiary to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner is otherwise materially adverse to the holders of Sharesthe Shares (in their capacity as such).
(c) Unless 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 0000 Xxx) after the Offer Commencement Date. Notwithstanding the foregoing, Sub mayunless this Agreement shall have been validly terminated pursuant to and in accordance with Section 11.01, without Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) extend the consent of the Company Offer (i) extend the Offerfor successive extension periods of reasonable duration if, if at the scheduled or extended expiration date of the Offer (as it may be extended from time to time in accordance with this Agreement), any of the Offer Conditions shall not be have been satisfied or waived, until such time as such conditions Offer Conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any applicable rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable 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 the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Subsidiary. If all of the Offer Conditions have been satisfied or waived prior to the expiration of the Offer; , and Merger Subsidiary is permitted by Applicable Law to accept for payment and pay for all Shares that have been validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration of the Offer, Merger Subsidiary shall not (iiiand Parent shall not permit Merger Subsidiary to) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond without the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders written consent of the Company. Parent and Sub agree to provide In the Company and its counsel any comments Parentevent that, Sub or their counsel may receive from following the SEC or its staff with respect to expiration of the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.Merger
Appears in 1 contract
Samples: Merger Agreement (Avocent Corp)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right of Parent to terminate this Agreement shall not have been terminated in accordance with Article VIII pursuant to Section 11.01, and none of the events set forth in Exhibit A Company shall have occurredcomplied with its obligations under Section 2.02, as promptly as practicable after the date hereof, but in no event later than seven thirteen Business Days after the date hereof, Merger Sub shall commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with 0000 Xxx) the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A Annex I hereto (the "“Offer Conditions"”). The date on which Merger Sub commences the Offer is referred to as the “Offer Commencement Date”.
(b) (Merger Sub expressly reserves the right to waive any of which may be waived in whole or in part by Parent the Offer Conditions and Sub in their sole discretion, except as expressly provided to make any change in the Offer Conditions) and to the rights terms of Parent and Sub to terminate this Agreement as provided in Section 8.1. The or conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except ; provided that, without the prior written consent of the Company, Merger Sub shall not not:
(i) reduce waive or change the Minimum Condition or the Termination Condition (in each case, as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Shares subject to the Offer, ;
(iiv) reduce extend or otherwise change the expiration date of the Offer Price, except as otherwise required or expressly permitted herein;
(iiivi) impose additional Offer Conditions or otherwise amend, modify or supplement any material conditions to the Offer other than of the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may, without the consent ; or
(vii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company 1934 Act.
(c) Unless extended as provided in this Agreement, the Offer shall expire at 11:59 p.m. (New York City time) on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 0000 Xxx) after the Offer Commencement Date (the “Initial Expiration Time”). Subject to the rights of Parent and Merger Sub to terminate this Agreement pursuant to Section 11.01, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall is not be satisfied or waivedwaived at the Initial Expiration Time or at any other scheduled expiration time of the Offer, Merger Sub shall extend the Offer from time to time until such time as such conditions Offer Condition or Offer Conditions are satisfied or waived; provided, however, provided that notwithstanding anything herein (i) Merger Sub shall not be required to the contrary, if any of the conditions to extend the Offer are beyond the End Date unless Parent is not satisfied or waived on any scheduled expiration date of the Offerthen permitted to terminate this Agreement pursuant to Section 11.01(b)(i), Parent and in which case Merger Sub shall be required to extend the Offer until beyond the End Date if this Agreement is not otherwise terminated pursuant to Section 11.01, (ii) no such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date individual extension of the Offer beyond shall be for a period of more than ten Business Days or such other period as mutually agreed between the Outside Date; parties, and (iiiii) Merger Sub may extend the Offer for any the minimum period required by any rule, regulation, interpretation Applicable Law or position the rules and regulations of the Securities and Exchange Commission (the "SEC") SEC or the NASDAQ or as may be necessary to resolve any comments of the SEC or its staff thereof applicable to the Offer; , the Schedule TO or Offer Documents. The Offer may not be terminated prior to its expiration date (iiias such expiration date may be extended pursuant to this Section 2.01) extend unless this Agreement is validly terminated pursuant to Section 11.01. If this Agreement is validly terminated pursuant to Section 11.01, Merger Sub shall promptly (and in any event within 24 hours following such termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Merger Sub prior to the acceptance for payment and payment for Shares tendered in the Offer, Merger Sub shall promptly return, and shall cause any reason depositary acting on one or more occasions for an aggregate period behalf of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares Merger Sub to enable the Merger to be effected without a meeting of the Company's stockholders return, in accordance with Section 253 of the General Corporation Law of the State of DelawareApplicable Law, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject all tendered Shares to the right of Parent, Sub or the Company to terminate this Agreement pursuant registered holders thereof.
(d) Subject to the terms hereof. Subject and conditions set forth in this Agreement and to the foregoing and applicable law and upon the terms and subject to the conditions satisfaction or waiver of the OfferOffer Conditions, Merger Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for for, promptly (after giving effect to any required withholding tax), as promptly as practicable within the meaning of Rule 14e-1(c) of the 0000 Xxx) after the date on which Sub first accepts shares for payment expiration of the Offer, all Shares validly tendered and not validly withdrawn pursuant to the Offer (such date, regardless of whether Parent the time at which Shares are first accepted for payment and Sub elect to provide paid for one or more subsequent offering periods pursuant to Rule 14d-11 of under the Exchange ActOffer, the "“Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the OfferTime”).
(be) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to On the Offer Conditions set forth in Exhibit A. On the date of commencement of the OfferCommencement Date, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO"”) with respect that shall include the summary term sheet required thereby and, as exhibits, the offer to the Offer, which shall contain as an exhibit or incorporate by reference the Offer to Purchase purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"), ”) and Parent and Sub shall (ii) cause to be disseminated the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable U.S. federal securities laws. Parent laws and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documentsother Applicable Law. Each of Parent, Merger Sub and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that the Offer Documents such information shall have become (or shall have become known to be, or have become, ) false or misleading in any material respect, and . Parent and Merger Sub further agree to take all steps necessary shall use their reasonable best efforts to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities lawslaws and any other Applicable Law. The Company shall furnish to Parent and Merger Sub the information relating to the Company required by the 1934 Act to be set forth in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the stockholders of Company and its counsel (it being understood that the CompanyCompany and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Sub agree to shall provide the Company and its counsel with (A) any written comments or other written communications (and a summary of all substantive oral comments or communications) 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 the receipt of such those comments or other communications and (B) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to cooperate provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any substantive discussions or meetings with the Company and its counsel in responding to any such commentsSEC.
Appears in 1 contract
The Offer. (a) (i) Provided that this Agreement shall has not have been terminated in accordance with Article VIII hereto, Purchaser will, and none of the events set forth in Exhibit A shall have occurredParent will cause Purchaser to, as promptly as practicable (but in no event later than seven the tenth (710th) business days following Business Day after (but not including) the public announcement by Parent and the Company date of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, this Agreement) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "“Exchange Act"”), ) the Offer to purchase all 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 above shall accordingly be extended) if (i) the Company shall not have provided to Parent on a timely basis all information reasonably requested by 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 Company is not prepared to, concurrently with such commencement, file with the SEC and disseminate to the holders of Shares the Schedule 14D-9. The obligation of Sub to, and of Parent Purchaser to cause Sub to, consummate the Offer and accept for payment, and pay for, any payment Shares tendered and not withdrawn pursuant to the Offer shall be subject only to (i) the condition (the “Minimum Condition”) that at least the number of Shares that shall constitute a majority of the then outstanding Shares on a Fully-Diluted Basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction of each of the other conditions set forth in Exhibit A Annex I hereto (the "“Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement”). The initial expiration date of the Offer shall will be the twentieth (20th) business Business Day (for this purpose, calculated in accordance with Section 14d-1(g)(3) of the Exchange Act) following (and including the day following of) the commencement of the Offer. The Purchaser expressly reserves the right (but will not be obligated) at any time or from time to time in its sole discretion to waive any Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to Condition or modify or amend the terms of the Offer, except that, without the prior written consent of the Company, Sub shall Purchaser will not (i1) reduce decrease the Offer Price or change the form of the consideration payable in the Offer, (2) decrease the number of Shares subject sought pursuant to the Offer, (ii3) reduce amend or waive the Offer PriceMinimum Condition or the condition set forth in paragraph (g) on Annex I, (iii4) impose any material conditions add to the Offer other than the Offer Conditions or conditions set forth on Annex I, (5) modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer conditions set forth on Annex I in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i6) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period except as required or permitted by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC"Section 1.1(a)(iii) or the staff thereof applicable to the Offer; (iii7) extend the Offer for make any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days other change in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub terms or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant Offer that is materially adverse to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 7.1 hereof and none of the events set forth in Exhibit A Annex I hereto shall have occurredoccurred and be existing, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, Purchaser to commence and Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended 1934 (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer at as promptly as practicable, but in no event later than five business days following the Offer Priceexecution of this Agreement. The obligation Upon the satisfaction of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretionAnnex I hereto, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise subject to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date extension of the Offer shall permitted by Section 1.1(d) hereof, Parent and Purchaser will be obligated to accept for payment any Shares validly tendered and not withdrawn. Parent expressly reserves the twentieth right from time to time, subject to Sections 1.1 (20thb) business day following commencement and 1.1(d) hereof, to waive any such condition, to increase the Per Share Amount, or to make any other changes in the terms and conditions of the Offer. The Offer Price Per Share Amount shall be net to the seller in cash, without interest thereon, upon the terms and subject to reduction only for any applicable Federal back-up withholding or stock transfer taxes payable by the conditions seller. The Company agrees that no Shares held by the Company or any of its Subsidiaries (as hereinafter defined) will be tendered pursuant to the Offer. Parent and Sub expressly reserve .
(b) Without the right, in their sole discretion, to modify the terms of the Offer, except that, without the prior written consent of the Company, Sub Parent shall not (i) reduce decrease the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions Per Share Amount or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer Offer, (other ii) decrease the number of Shares sought, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I) to permit the purchase of Shares constituting less than adding consideration); a majority of the number of Shares outstanding, (iv) impose additional conditions to the Offer, (v) amend any one or more of the conditions set forth in Annex I to broaden the scope of such condition or conditions or (vi) amend any other material terms term of the Offer in a any manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon Upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, Purchaser will accept for paymentpayment and purchase, as promptly soon as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 terms of the Exchange ActOffer, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant prior to the expiration of the Offer.
(bc) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to having only the Offer Conditions conditions set forth in Exhibit A. On Annex I hereto. As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Sub Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements or amendments thereto, the "Schedule TO14D-1") with respect to the OfferOffer that will comply in all material respects with the provisions of such Schedule 14D-1 and all applicable Federal securities laws, which shall contain as an exhibit and will include or incorporate by reference the Offer to Purchase and a forms of the related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madedocuments, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the "Offer Documents"), and . Parent and Sub Purchaser agree promptly to correct the Schedule 14D-1 or the Offer Documents if and to the extent that any of them shall cause have become false or misleading in any material respect (and the Company, with respect to be disseminated written information supplied by it specifically for use in the Schedule 14D-1 or the Offer Documents, shall promptly notify Parent of any required corrections of such information and shall cooperate with Parent and Purchaser with respect to correcting such information) and to supplement the information provided by it specifically for use in the Schedule 14D-1 or the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree include any information that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or become 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 Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule TO14D-1, as so correctedcorrected or supplemented, to be filed with the SEC and the other Offer Documents, as so correctedcorrected or supplemented, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the on any Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub agree to Purchaser shall provide the Company and its counsel in writing with any comments Parent, Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments.
(d) The Offer to Purchase shall provide for an initial expiration date of 20 business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement. Purchaser agrees that it shall not terminate or withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived. If at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived, Parent may, from time to time extend the expiration date of the Offer until the date such conditions are satisfied or earlier waived and Parent becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer; provided, however, that the expiration date of the Offer may not be extended beyond September 30, 1999 without the consent of the Company. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the expiration date of the Offer (as it may be extended) for any period required by applicable rules and regulations of the SEC in connection with an increase in the consideration to be paid pursuant to the Offer or any other material development affecting the Offer and (ii) extend the expiration date of the Offer (as it may be extended) for up to ten business days, if on such expiration date the conditions for the Offer described on Annex I hereto shall have been satisfied or earlier waived, but the number of Shares that have been validly tendered and not withdrawn represents less than 90 percent of the then issued and outstanding Shares on a fully diluted basis; provided, however, that the expiration date of the Offer may not be extended beyond September 30, 1999 without the consent of the Company. Parent and Purchaser agree that if all of the conditions to the Offer set forth on Annex A are not satisfied on any scheduled expiration date, then if all such conditions are reasonably capable of being satisfied prior to September 30, 1999, Purchaser shall extend the Offer from time to time (each such individual extension not to exceed 10 Business Days after the previously scheduled expiration date) until such conditions are satisfied or waived; provided, however, that Purchaser shall not be required to extend the Offer beyond August 30, 1999 if, as of such date, the Minimum Condition shall not have been satisfied.
Appears in 1 contract
The Offer. (a) Provided that Subject to the conditions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable practicable, but in no event later than seven (7) six business days following after the public announcement by Parent and the Company date of the Offer and Mergerthis Agreement, Merger Sub shall, and Parent Compass shall cause Merger Sub to, commence, commence the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the applicable rules and regulations thereunderof the Securities and Exchange Commission (the “SEC”) at a price per share of Company Common Stock equal to $3.40 (such amount, or any greater amount paid per share pursuant to the Offer, the "Exchange Act"“Offer Price”), net to the Offer at the Offer Pricesellers in cash, without interest. The obligation obligations of Merger Sub to, and of Parent Compass to cause Merger Sub to, consummate the Offer and accept for payment, and pay for, any Shares shares of Company Common Stock tendered and not withdrawn pursuant to the Offer shall be are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). Annex I. The initial expiration date of the Offer shall be 20 business days following the twentieth (20th) business day following commencement of the OfferOffer (as it may be extended in accordance with this Agreement, the “Expiration Date”). The Offer Price shall be net Merger Sub expressly reserves the rights to waive any condition to the seller in cash, without interest thereon, upon the terms Offer and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the OfferOffer in a manner not inconsistent with the provisions of this Agreement, except that, without the prior written consent of the Company, Merger Sub shall not not, except as otherwise expressly provided in this Agreement, (i) reduce the number of Shares shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Priceprice per share of Company Common Stock to be paid pursuant to the Offer, (iii) impose any material conditions to change or waive the Offer other than the Offer Conditions or modify the Offer Conditions Minimum Tender Condition (other than to waive any Offer Conditions to the extent permitted by this Agreementas defined in Annex I); , (iv) except as provided add to the conditions set forth in the next sentenceAnnex I or modify any condition set forth in Annex I or amend, extend modify or supplement any other terms of the Offer beyond in any scheduled expiration date; manner adverse to the holders of Company Common Stock, (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of extend the Offer beyond the date specified below in a manner adverse to the holders of Sharesthis Section 1.
1. Notwithstanding the foregoingUnless extended as provided in this Agreement, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of shall expire on the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if Expiration Date. If any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date Expiration Date of the Offer, Parent and then Merger Sub shall be required to may extend or re-extend the Offer for one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions to the Offer to be satisfied from time to time until such condition or conditions are satisfied or waived unless (each such condition or conditions could extension period not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 exceed 10 business days beyond the latest expiration date that would at a time), or shall otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders act in accordance with Section 253 1.1(b); provided that Merger Sub may not extend the Offer beyond 90 business days following the commencement of the General Corporation Law Offer without the prior written consent of the State Company (the “Final Expiration Date”). In addition, Merger Sub may, without the consent of Delawarethe Company, elect to provide a subsequent offering period for the Offer of at least three but not more than 20 business days in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the “Exchange Act”), following its acceptance of shares of Company Common Stock in each case subject to the right of Parent, Sub or the Company to terminate this Agreement exchange for payment thereof pursuant to the terms hereofOffer. Subject to the foregoing and applicable law and upon Upon the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Sub shall, and Parent Compass shall cause it Merger Sub to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) Offer as soon as practicable after the earliest date as of which each of the conditions of the Offer set forth in Annex I has been satisfied, but only to the extent such conditions relate to the Company. The Offer shall be made by term “Specified Date” means the date on which Merger Sub accepts for payment the shares of an offer Company Common Stock tendered pursuant to purchase (the "Offer to Purchase") and subject to the Offer Conditions set forth in Exhibit A. On the date of commencement conditions of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Article VIII and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Exhibit A shall have occurredAnnex I hereto, as promptly as practicable (but in no event later than seven twenty days after the date hereof), Merger Subsidiary shall commence an offer (7the "Offer") business days following the public announcement by Parent to purchase any and the Company all of the Offer and Mergeroutstanding Shares, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunderassociated Rights, the "Exchange Act")at a price of $32.00 per Share, the Offer at the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant net to the Offer shall be subject to the conditions set forth seller in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement)cash. The initial expiration date of the Offer shall be twenty Business Days from the twentieth (20th) business day following commencement of date the OfferOffer is commenced. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, condition that there shall be validly tendered in their sole discretion, to modify accordance with the terms of the Offer, except prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent or any of its Subsidiaries, represents at least a majority of the Shares outstanding on a fully-diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex I hereto. 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 no change or waiver may be made, without the prior written consent of the Company, that 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 Offer in addition to those set forth in Annex I. Notwithstanding the foregoing, without the consent of the Company, Sub Merger Subsidiary shall not have the right to extend the Offer (i) reduce the number of Shares subject from time to the Offertime if, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waivedOffer, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are shall not have been satisfied or waived on any scheduled expiration date of the Offerwaived, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; providedwaived, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; Offer or any period required by applicable law, (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days 10 Business Days beyond the latest expiration date that would otherwise be permitted under clauses clause (i) and or (ii) of this sentence if there shall not have been tendered a sufficient sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to enable the Merger to be effected without a meeting Offer, together with the Shares then owned by Parent or any of its Subsidiaries, represents less than 90% of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); outstanding Shares on a fully-diluted basis and (iv) after the Acceptance Date, for one or more pursuant to a "subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to period" under Rule 14d-11 of the Exchange 1934 Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub Merger Subsidiary shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 expiration of the Exchange ActOffer, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On As soon as practicable on the date of commencement of the Offer, Parent and Sub Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer to Purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the such documents included therein therein, including a Rule 13e-3 Transaction Statement on Schedule 13E-3, pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub Merger Subsidiary 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 that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and . Parent and Sub further Merger Subsidiary agree to take all steps necessary to cause the Schedule TO, TO as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing being filed with the SEC or dissemination disseminated to the stockholders holders of the CompanyShares. Parent and Sub agree to shall provide the Company and its counsel with a copy of any comments Parent, Sub or their counsel may receive received from the SEC or its staff with respect to on the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such commentsDocuments.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 7.1 and none of the events set forth in Exhibit paragraphs (a) through (g) of Annex A hereto shall have occurredoccurred or be existing (and shall not have been waived by the Purchaser), as promptly as practicable but in no event later than seven the Purchaser shall commence (7) business days following the public announcement by Parent and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), ) the Offer at as promptly as reasonably practicable after the Offer Pricedate hereof, but in any event within five business days after the public announcement of the execution of this Agreement. The obligation of Sub tothe Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the condition that there be validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares when taken together with the Shares then beneficially owned by the Parent or any of its Subsidiaries which represents at least two-thirds of the then outstanding Shares (the "Minimum Condition") and to the satisfaction or waiver by the Purchaser of the other conditions set forth in Annex A hereto. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered to the Purchaser pursuant to the Offer. The Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), and of Parent to cause Sub to, consummate increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer, changes the form of consideration to be paid in the Offer or amends any of the conditions set forth in Annex A hereto, imposes conditions to the Offer in addition to the conditions set forth in Annex A hereto, waives the Minimum Condition or makes other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the Offer. Subject to the terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, the Purchaser will accept for payment, payment and pay for, any for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law. Notwithstanding the foregoing, the Purchaser shall, until the Drop Dead Date, (i) extend the Offer beyond the scheduled expiration date, which shall be subject to 20 business days following the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to , if, at the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms scheduled expiration of the Offer, except that, without the consent any of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than Purchaser's obligation to accept for payment and to pay for the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions Shares shall not be satisfied or, to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are Purchaser shall not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until if any such condition is incapable of being satisfied and the Parent simultaneously terminates the Agreement in accordance with the provisions of Article VII or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; (iii) extend . Any extension of the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses pursuant to clause (i) and (ii) of the preceding sentence or this sentence if there Section 1.1 shall not have been tendered a sufficient exceed the lesser often business days or such fewer number of Shares days that the Purchaser reasonably believes are necessary to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. The Purchaser shall provide a "subsequent offering period" (as contemplated by Rule 14d-11 under the Exchange Act) of not less than three business days following its acceptance for payment of Shares in the Offer, Sub shall, and Parent shall cause it to, . On or prior to the date that the Purchaser becomes obligated to accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn Shares pursuant to the Offer.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which Parent shall contain as an exhibit provide or incorporate by reference 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 any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and provided to the extent required by applicable federal securities laws. Parent and Sub agree Purchaser the funds necessary to pay for all Shares that the Offer Documents shall comply in all material respects with the Exchange Act Purchaser becomes so obligated to accept for payment and the Offer Documents, on the date first published, sent or given pay for pursuant 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 is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.the
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII IX and none of the events set forth in Exhibit ANNEX A shall have occurredoccurred and be existing, as promptly as reasonably practicable (but in no event later than seven (7) five business days following from the public announcement by Parent and the Company of the Offer and Mergerexecution of this Agreement), Sub shall, and Parent Purchaser shall cause 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 thereunder, the "Exchange Act"), ) the Offer to acquire all the outstanding Shares at the Offer Price. The obligation a price of Sub to$13.00 per Share, and of Parent to cause Sub to, consummate the Offer and accept for payment, and pay for, any Shares tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, subject to applicable withholding of taxes, without interest thereon(such price, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, or such higher price per Share as may be paid in their sole discretion, to modify the terms of the Offer, except that, without being referred to herein as the consent of the Company, Sub shall not "OFFER PRICE"). Subject to (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms satisfaction of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) Minimum Condition and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting satisfaction or waiver of the Company's stockholders other conditions set forth in ANNEX A, Purchaser shall consummate the Offer in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the its terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, promptly accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Sub first accepts shares for payment Shares validly tendered pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant as soon as Purchaser is legally permitted to the Offer.
(b) do so under applicable law. The Offer shall be made by means of an offer to purchase (the "Offer to PurchaseOFFER TO PURCHASE") and shall be subject to the Offer Conditions Minimum Condition and the other conditions set forth in Exhibit A. On ANNEX A hereto, and shall reflect, as appropriate, the other terms set forth in this Agreement. Parent and Purchaser expressly reserve the right, in their sole discretion, subject to compliance with the Exchange Act and the terms of this Agreement, to waive any such condition and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that Parent and Purchaser shall not (i) amend or waive the Minimum Condition, (ii) decrease the Offer Price, (iii) decrease the maximum number of Shares to be purchased in the Offer, (iv) waive or satisfy the Financing Condition (as defined herein) unless the representation set forth in Section 5.04 shall be true and correct, or (v) amend any other term or condition of the Offer in any manner or impose any term or condition that is adverse to the holders of the Shares without the written consent of the Company executed by the Chief Executive Officer of the Company stating that it was authorized by the Company Board or a duly authorized committee thereof. Notwithstanding any other provision hereof, Parent and Purchaser expressly reserve the right (but will have no obligation to), in their sole discretion, subject to compliance with the Exchange Act and the terms of this Agreement, to waive the Financing Condition. Unless otherwise stated, all references in this Agreement to Company Common Stock and Shares shall be deemed to include the associated preferred stock purchase rights (the "RIGHTS") issued pursuant to the Rights Agreement.
(b) Notwithstanding the foregoing, in the event that any condition to the Offer set forth in ANNEX A shall not have been satisfied or waived at the scheduled or any extended expiration date of commencement of the Offer, Purchaser shall (unless otherwise notified by the Company in writing), and Purchaser shall otherwise be entitled to, extend the expiration date of the Offer in increments of up to 5 business days each (unless otherwise agreed by Parent and Sub the Company) until the earliest to occur of (x) the satisfaction or waiver of each such condition and (y) the termination of this Agreement in accordance with its terms; PROVIDED, HOWEVER, that Purchaser shall not be required to extend the Offer as provided in this sentence if any such condition (other than the Financing Condition) is incapable of being satisfied. In addition, without limiting the foregoing, Purchaser may, without the consent of the Company, extend the expiration date of the Offer (i) as required by applicable law, (ii) pursuant to Section 7.10, and (iii) for up to 5 business days if, on the scheduled or any extended expiration date of the Offer, the Shares validly tendered pursuant to the Offer and not withdrawn represent more than 80% but less than 90% of the outstanding Shares, notwithstanding that all the conditions to the Offer set forth in ANNEX A have been satisfied, so long as Purchaser waives the further satisfaction of any of the conditions to the Offer (other than the condition set forth in paragraph (a) of Annex A).
(c) As soon as practicable on the date the Offer is commenced (the "Offer Commencement Date"), Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements or amendments thereto, the "Schedule TOSCHEDULE 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall contain as an exhibit or shall incorporate by reference the Offer to Purchase and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule TO and the documents included therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"), and . Parent and Sub Purchaser shall cause to be disseminated mail the applicable Offer Documents to holders the stockholders of Shares the Company as and to soon as practicable after filing with the extent required by applicable federal securities lawsSEC. Parent and Sub agree that the The Offer Documents shall comply in all material respects with the Exchange Act provisions of applicable federal securities laws. Each of Parent and the Offer DocumentsPurchaser, on the date first publishedone hand, sent or given to and the Company's stockholders, on the other hand, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents which shall be, or have become, become false or misleading in any material respect, and Parent and Sub Purchaser further agree to take all steps necessary to cause the Schedule TO14D-1, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Parent and Purchaser shall give the Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with being filed with, or sent to, the SEC or dissemination to the stockholders of the CompanySEC. Parent and Sub Purchaser agree to provide the Company and its counsel any comments Parent, Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments comments.
(d) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to purchase all the Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
(e) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to cooperate the Offer such amounts as be required to be deducted and withheld with respect to the making of such payment under the Code or under any provision of state, local or foreign tax law; PROVIDED, HOWEVER, that Purchaser shall promptly pay any amounts deducted and withheld hereunder to the applicable Governmental Entity, shall promptly file all Tax Returns and reports required to be filed in respect of such deductions and withholdings, and shall promptly provide to the Company proof of such payment and its counsel in responding to any a copy of all such commentsTax Returns and reports.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in Exhibit A shall have occurredAgreement, as promptly as practicable but in no event later than seven (7) business days following the public announcement by Parent and the Company of the Offer and MergerAugust 9, 1999, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange ActEXCHANGE ACT"), the Offer at Offer. Subject to Section 1.1(c), the Offer Price. The obligation of Sub to, and of Parent to cause Sub to, consummate commence the Offer and accept for payment, and pay for, any Shares Offer Securities tendered and not withdrawn pursuant to the Offer shall be subject only to the Minimum Condition (as defined in the attached EXHIBIT C) and the other conditions set forth in Exhibit A EXHIBIT C (the Minimum Condition and such other conditions being hereinafter collectively referred to as the "Offer ConditionsOFFER CONDITIONS") (any of which may be waived by Sub in whole or in part by Parent at any time and Sub from time to time in their its sole discretion, except as expressly provided in that, subject to Section 1.1(c), Sub shall not waive the Offer ConditionsMinimum Condition without the consent of the Company) and subject to the rights of Parent and or Sub to terminate this Agreement as provided in Section 8.18.
1. The conditions to the Offer set forth in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve reserves the right, in their sole discretion, right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares Offer Securities subject to the Offer, (ii) reduce the Applicable Offer PricePrices, (iii) impose any material other conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); , (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; Offer, or (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of SharesOffer. Notwithstanding the foregoing, Sub may, without the consent of the Company Company, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; , (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses clause (i) and or (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delawaresentence, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Actexercise Sub's rights under Section 1.1(c), in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Parent and Sub agree that if at any scheduled expiration date of the Offer, either of the conditions set forth in paragraphs (e) and (f) of EXHIBIT C or the Minimum Condition shall not have been satisfied, but at such scheduled expiration date all the conditions set forth in paragraphs (a), (b), (c), (d), (g), (h) and (i) shall then be satisfied, at the request of the Company (confirmed in writing), Sub shall extend the Offer from time to time, subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof and provided that Sub shall not be required to extend the Offer beyond September 30, 1999. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Sub shall, and Parent shall cause it Sub to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the all Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Securities validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all supplements or amendments thereto, the "Schedule TOSCHEDULE 14D-1") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase purchase and a related letter of transmittal and summary advertisement (such Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares Offer Securities as and to the extent required by applicable federal Federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub 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 that the Offer Documents such information shall be, be or shall have become, become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, 14D-1 as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of SharesOffer Securities, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders holders of the CompanyOffer Securities. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
(c) In the event the Minimum Condition is not satisfied on any scheduled expiration date of the Offer, Sub may, in its sole discretion and without the consent of the Company (i) if any Offer Conditions other than the Minimum Condition shall not have been satisfied or waived, withdraw the Offer or allow it to expire, subject to the right of the Company to request that Sub extend the Offer by reason of the failure to satisfy either of the conditions set forth in paragraphs (e) and (f) of EXHIBIT C or the Minimum Condition, as set forth in Section 1.1(a), (ii) extend the Offer pursuant to Section 1.1(a), (iii) withdraw the Offer and, at the request of Sub (confirmed in writing), Company, acting through the Company's Board of Directors, shall, in accordance with applicable law, the Company Charter and Company Bylaws, duly call, give notice of, convene and hold a special meeting of its shareholders as promptly as practicable following the giving of such request by Sub for the purpose of considering and taking action upon the Merger and this Agreement, and the parties shall comply with the procedures and obligations set forth in Section 2.8 with respect to a Special Meeting or (iv) amend the Offer to provide that, in the event (A) the Minimum Condition is not satisfied at the next scheduled expiration date of the Offer (after giving effect to the issuance of any Shares issued pursuant to the Stock Option Agreement but without giving effect to the potential issuance of any Shares issuable upon exercise of the Stock Option Agreement), and (B) the number of Shares tendered pursuant to the Offer and not withdrawn as of such next scheduled expiration date is more than 50% of the then outstanding Shares, Sub shall waive the Minimum Condition and amend the Offer to reduce the number of Shares subject to the Offer to a number of Shares that, when added to the Shares then owned by Sub, will equal 49.99% of the Shares then outstanding (the "REVISED MINIMUM NUMBER"), and, if a greater number of Shares is tendered into the Offer and not withdrawn, purchase, on a pro rata basis, the Revised Minimum Number of Shares, and, in the case of each of clauses (i), (ii), (iii) and (iv), subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. In no event, however, shall Sub be required to accept for purchase or pay for any Offer Security if less than the Revised Minimum Number of Shares are tendered pursuant to the Offer and not withdrawn at the expiration date. Notwithstanding any other provisions of this Agreement, in the event that Sub purchases a number of Shares equal to the Revised Minimum Number, then without the prior written consent of Sub prior to the termination of this Agreement, Company shall take no action whatsoever to increase the percentage of Shares owned by Sub in excess of the Revised Minimum Number.
(d) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Offer Securities that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Harris Corp /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VIII Section 9.1 and none subject to the provisions of the events set forth in Exhibit A shall have occurredthis Agreement, as promptly as practicable but in no event later than seven (7) five business days following after the date of the public announcement by Parent and the Company of the Offer and Mergerthis Agreement, Sub shall, and Parent shall cause Sub to, commence, within commence the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer at the Offer PriceOffer. The obligation of Sub to, and of Parent to cause Sub to, consummate commence 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 Parent and Sub in their its sole discretion, except provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth defined in Exhibit A 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 conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this AgreementA)). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve reserves the right, in their sole discretion, right to modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares subject to be purchased in the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than in addition to the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted not prohibited by this Agreement); , (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; Offer, (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend make any other material change or modification in any of the terms of the Offer in a any manner that is adverse to the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company Company, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable to the Offer; Offer and (iii) on one or more occasions, extend the Offer for any reason on one or more occasions for an aggregate a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) aggregate of 15 business days if, on a scheduled expiration date on which the Offer Conditions shall have been satisfied or waived, the number of shares of Company Class A Common Stock (together with any shares of Company Class A Common Stock held by Parent or any of its Subsidiaries) that have been validly tendered and not withdrawn represent more than 70% of the then issued and outstanding shares of Company Class A Common Stock, but less than 90% of the then issued and outstanding shares of Company Class A Common Stock, and the number of shares of Company Class B Common Stock (together with any shares of Company Class B Common Stock held by Parent or any of its Subsidiaries) that have been validly tendered and not withdrawn represent more than 70% of the then issued and outstanding shares of Company Class B Common Stock, but less than 90% of the then issued and outstanding shares of Company Class B Common Stock. Parent and Sub agree that Sub will not terminate the Offer between scheduled expiration dates (except in the aggregate event that this Agreement is terminated pursuant to Rule 14d-11 Section 9.1) and that, in the event that Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due to the failure of one or more of the Exchange ActOffer Conditions, in each case subject to the right of Parent, Sub or the Company to terminate unless this Agreement shall have been terminated pursuant to the terms hereof. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the OfferSection 9.1, Sub shall, and Parent shall cause it Sub to, extend the Offer until such date as the Offer Conditions have been satisfied or such later date as required by applicable law; provided, however, that nothing herein shall require Sub to extend the Offer beyond the Outside Date. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, as promptly as permitted under applicable securities laws, payment and pay for (after giving effect to any required withholding tax)for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Sub is permitted to accept for payment and pay for under applicable law, as soon as practicable (and, in any event, within three business days after the later of the expiration of the Offer and the receipt by the depository for the Offer of the certificates representing such tendered shares). If this Agreement is terminated by either Parent or Sub or by the Company, other than pursuant to Section 9.1(d), Sub shall, and Parent shall cause Sub to, terminate promptly the Offer. If this Agreement is terminated pursuant to Section 9.1(d), Parent or Sub may terminate the Offer. Sub may, at any time, transfer or assign to one or more corporations directly or indirectly wholly-owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but any such transfer or assignment shall not relieve Sub of its obligations under the Offer or prejudice the rights of tendering stockholders to receive payment for Shares validly tendered and accepted for payment.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Offer Conditions set forth in Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all supplements or amendments thereto, the "Schedule TO14D-1") with respect to the Offer, which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase purchase and a related letter of transmittal and summary advertisement (such Schedule TO 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"), and Parent and Sub shall cause the Offer Documents to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub 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 that the Offer Documents such information shall be, or have become, become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO, 14D-1 as so corrected, corrected to be filed with the SEC and the other Offer Documents, Documents as so corrected, corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company's stockholders. Parent and Sub agree to provide the Company and its counsel any comments Parent, 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 to cooperate with the Company and its counsel in responding to any such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis all funds necessary to accept for payment, and pay for, any Shares that are validly tendered and not withdrawn pursuant to the Offer and that Sub is permitted to accept for payment under applicable law and pay for, pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Monsanto Co)
