The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn. (b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC") (i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.
Appears in 2 contracts
Samples: Merger Agreement (Ren Corp Usa), Merger Agreement (Cobe Laboratories Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existingArticle V, Purchaser shall, and Parent shall cause Purchaser to, commence (within the Offer meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with its rules and regulations, the “Exchange Act”)), the Offer, as promptly as reasonably practicable (and, so long as the Company is in compliance with its obligations to provide information contained in the second sentence of Section 1.1(d), within ten (10) Business Days) after the date hereofof this Agreement; provided, but in no event later than five business days after however, if the initial public announcement Company is not ready to file the Schedule 14D-9 on the same date as the commencement of Purchaser's intention to commence the Offer, then such deadline shall automatically be extended until such date as the Company is ready to file the Schedule 14D-9. Purchaser shall give the Company three (3) Business Days notice of the expected commencement date.
(b) The obligation of Purchaser to accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject to the condition (the "Minimum Condition"i) that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been there being validly tendered in the Offer, and not validly withdrawn prior to the expiration any then-scheduled Expiration Time, that number of Shares which represents at least forty percent (40%) of the Offer total number of Shares authorized and also shall be subject to issued on the satisfaction date hereof (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Purchaser, in their sole discretion, of the other conditions or requirements set forth in Annex A heretoattached hereto (together with the Minimum Condition, the “Offer Conditions”), other than the Minimum Condition. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share The Offer Price payable in the Offer, respect of each Share validly tendered and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions validly withdrawn pursuant to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, shall be paid net to the seller in cash, upon without interest, on the terms and subject to the conditions set forth in this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the Offer. Subject “Offer to Purchase”) that describes the terms and conditions of the OfferOffer as set forth in this Agreement, including the Offer Conditions. Parent and Purchaser expressly reserve the right (in their sole discretion) to waive, in whole or in part, any Offer Condition or to increase the Offer Price; provided, however, that, unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall pay, as promptly as practicable after expiration not
(i) decrease the Offer Price or change the form of consideration payable in the Offer, for all (ii) decrease the number of Shares validly tendered and not withdrawnsubject to the Offer, (iii) add to the conditions set forth on Annex A, (iv) amend or modify any Offer Condition in a manner that is adverse to the Company Shareholders, (v) waive or amend the Minimum Condition, (vi) except as otherwise provided in this Section 1.1, extend or otherwise change the expiration date of the Offer or (vii) otherwise amend, modify or supplement the terms of the Offer in a manner that is adverse to the Company Shareholders; provided that, notwithstanding the foregoing, Purchaser expressly reserves the right (exercisable in its sole discretion) to increase the Offer Price or to waive any of the Offer Conditions, other than the Minimum Condition.
(bd) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the U.S. Securities and Exchange Commission (the "“SEC")
(i”) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") TO with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments amendments, supplements and supplements exhibits thereto, the "“Schedule 13E-3"TO”) with respect to on the date that the Offer and -------------- the other Transactions (is commenced, which Schedule TO shall include, as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3exhibits, the Offer to Purchase Purchase, form of transmittal letter and form of notice of guaranteed delivery (such other documentsSchedule TO, including all such exhibits, together with all any supplements and or amendments thereto, being referred to herein collectively as the "“Offer Documents"”) and, subject to the Company’s compliance with Section 1.2(b), cause the Offer Documents to be disseminated to the Company Shareholders in accordance with the applicable requirements of the Exchange Act. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required by the Exchange Act to be set forth in the Offer Documents or that is otherwise reasonably requested by Parent or Purchaser for inclusion in the Offer Documents or in connection with the obligations relating to the Offer Documents contained in this Section 1.1(d). GambroParent and Purchaser shall take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to the Company Shareholders, Parentin each case as and to the extent required by applicable Law. Parent and Purchaser, Purchaser on the one hand, agree to amend the Offer Documents and the --------------- Company agree Company, on the other hand, agrees to promptly correct promptly any information provided by any of them it for use in the Offer Documents which Documents, if and to the extent such information shall have become false or misleading, and Gambro, misleading in any material respect or as otherwise required by applicable Law. Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 Offer Documents, as so corrected amended (if applicable), to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe Company Shareholders, in each case as and to the extent required by applicable federal securities lawsLaw. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the Company Shareholders, the Company and its counsel shall be given a reasonable opportunity to review and comment on such Offer Documents, and Parent and Purchaser shall give reasonable consideration to any such comments. Parent and Purchaser 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, and shall give the Company and its counsel a reasonable opportunity to participate in the response of Parent and Purchaser to those comments and to provide comments on any response, and Parent and Purchaser shall give reasonable consideration to any such comments. Prior to responding to any comments of the SEC with respect to the Offer Documents, Parent and Purchaser shall provide the Company and its counsel a reasonable opportunity to review and comment on such response, and Parent and Purchaser shall give reasonable consideration to any such 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, on the date that is twenty (20) Business Days (as defined in Rule 14d-1 under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”). Notwithstanding anything in this Agreement to the contrary, but subject to the parties’ respective rights to terminate this Agreement under Article V, if applicable, (i) Purchaser may, in its sole discretion, without the consent of the Company, extend the Offer on one or more occasions if on any then-scheduled Expiration Time any of the Offer Conditions shall not be satisfied or, as permitted by this Agreement, waived, until such time as such condition or conditions are satisfied or so waived, (ii) Purchaser shall extend the Offer for any period required by applicable Law, any interpretation or position of the SEC, the staff thereof or NASDAQ applicable to the Offer, (iii) in the event that any of the Offer Conditions (other than the Minimum Condition) shall have not been satisfied or, as permitted by this Agreement, waived as of any then-scheduled Expiration Time, then Purchaser, at the request of the Company, shall extend the Offer for a period reasonably requested by the Company and (iv) in the event that the Minimum Condition shall not have been satisfied as of the then-scheduled Expiration Time and all of the other conditions to the Offer set forth in Annex A shall have been satisfied as of such Expiration Time, then, at the request of the Company, Parent shall cause Purchaser to extend the Offer for one extension period of up to twenty (20) Business Days, the length of such period to be determined by the Company in its sole discretion; provided, however, that in no event shall Purchaser be required or permitted to extend the Offer beyond December 31, 2011 (the “Outside Date”).
(f) Subject to the terms and conditions set forth in this Agreement and to satisfaction or waiver of the Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, consummate the Offer and accept for payment and pay for (subject to any withholding of Taxes pursuant to Section 1.1(h)) all Shares validly tendered and not validly withdrawn pursuant to the Offer promptly after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.1). Acceptance for payment of Shares pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Unless this Agreement and the Offer are terminated in accordance with Article V prior to the Offer Closing, Parent shall cause Purchaser to extend the Offer for a “subsequent offering period” of not less than twenty (20) Business Days, and Purchaser may, at its sole discretion, extend the Offer for additional “subsequent offering periods” (and one or more extensions thereof), all in accordance with Rule 14d-11 under the Exchange Act. The Offer Documents shall disclose the initial “subsequent offering period” and may, in Purchaser’s sole discretion, provide for such a reservation of right with respect to any additional “subsequent offering periods.” Notwithstanding the foregoing and subject to applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Law. Any such delay in payment shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. Nothing contained in this Section 1.1 shall affect any termination rights in Article V, as to the Agreement, or in Annex A, as to the Offer.
(g) Purchaser shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article V. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated pursuant to Article V, prior to the acceptance for payment of the Shares tendered in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. This Agreement may not be terminated by Parent or Purchaser for any reason following acceptance for payment of the Shares tendered in the Offer but prior to payment for such Shares.
(h) Parent, Purchaser and any depository acting on behalf of Parent or Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts otherwise payable to any Person pursuant to this Agreement 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”), and applicable Treasury Regulations issued pursuant thereto, or under any provision of any state, local or foreign Tax Law, including applicable Spanish Tax Law. To the extent amounts are so withheld, such 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. Any amounts so withheld shall be paid over promptly to the appropriate taxing authority and Purchaser shall provide prompt written notice to the Persons from whom such amounts are withheld, specifying the amounts so withheld and the taxing authorities to which the withheld amounts have been paid.
Appears in 2 contracts
Samples: Transaction Agreement (Schneider Electric Sa), Transaction Agreement (Telvent Git S A)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex Exhibit A hereto shall have occurred or and be existingcontinuing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, (but in no any event not later than five business days after the initial public announcement of Purchaser's intention the execution and delivery of this Agreement), Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), an offer to purchase (the "Offer") all outstanding shares of the Company Common Stock at a price of $11.25 per share, net to the seller in cash (the "Offer Consideration"). The obligation of Parent and Sub to commence the Offer. The obligation of Purchaser to , consummate the Offer, accept for payment and to pay for shares of Company Common Stock validly tendered in the Offer and not withdrawn shall be subject only to those conditions set forth in Exhibit A hereto.
(b) Parent and Sub expressly reserve the right to amend or modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (and Parent shall not cause Sub to): (i) decrease the Offer Consideration, change the form of the Offer Consideration or decrease the number of Shares tendered sought pursuant to the Offer Offer, (ii) amend or waive the condition that there shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration time the Offer expires a number of shares of Company Common Stock which constitutes a majority of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable outstanding on a fully-diluted basis on the date of commencement purchase ("on a fully-diluted basis" having the following meaning, as of any date: the number of shares of Company Common Stock outstanding, together with Shares which the Company may be required, now or in the future, to issue pursuant to options, warrants or other rights or obligations outstanding at that date), (iii) extend the expiration date of the OfferOffer (except that Sub may extend the expiration date of the Offer (a) as required by any rule, Purchaser shall file with regulation or interpretation of the United States Securities and Exchange Commission (the "SEC")
, (ib) for such periods as Sub may reasonably deem necessary (but not to a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, date later than the "Schedule 14D-1"60th calendar day after the date of commencement) with respect in the event that any condition to the Offer and is not satisfied, or (iic) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 for one or more times for an aggregate period of up to 15 days (together with all amendments and supplements thereto, not to exceed 60 calendar days from the "Schedule 13E-3"date of commencement) with respect to the Offer and -------------- the for any reason other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use than those specified in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.immediately preceding
Appears in 2 contracts
Samples: Merger Agreement (Ero Marketing Inc), Agreement and Plan of Merger (Hc Acquisition Corp)
The Offer. (a) Provided Subject to the provisions of this Agreement (including, without limitation, Annex A attached hereto), and provided that this Agreement --------- shall has not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existingArticle IX hereof, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days days, as defined in Rule 14d-1(e)(6) ("Business Days") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the initial public announcement of Purchaser's intention to this Agreement, Merger Sub will commence the Offer. .
(i) The obligation of Purchaser Merger Sub to accept for payment payment, purchase and pay for any Shares tendered pursuant to the Offer shall be subject to the condition satisfaction or waiver of the conditions set forth in Annex A attached hereto (the "Minimum ConditionOffer Conditions") (including the Offer Condition that at least that number of Shares equivalent to a majority of the then total Shares issued and outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to (the satisfaction of the other conditions set forth in Annex A hereto"Minimum Condition")). Purchaser Merger Sub expressly reserves the right to modify the terms of the Offer and to waive any such conditioncondition of the Offer, to increase except that, Merger Sub will not, without the price per Share prior written consent of the Company (i) decrease the amount or change the form of consideration payable in the Offer, and to make any other changes in (ii) decrease the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased sought in the Offer or which imposes Offer, (iii) impose additional conditions to the Offer, (iv) change any Offer Condition or amend any other term of the Offer if any such change or amendment would be materially adverse in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net any respect to the seller in cashholders of Shares (other than Parent or Merger Sub), upon (v) except as provided below, extend the terms and subject to the conditions Offer if all of the Offer. Offer Conditions have been satisfied or (vi) amend or waive the Minimum Condition.
(ii) Subject to the terms and conditions hereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) Business Days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the "Scheduled Expiration Date"); provided, however, that without the consent of the Company, Merger Sub may (x) extend the Offer, if on the Scheduled Expiration Date of the Offer any of the Offer Conditions shall not have been satisfied or waived, for one (1) or more periods (none of which shall exceed ten (10) Business Days), provided that Merger Sub may not extend the expiration of the Offer past sixty (60) days from the date of this Agreement, unless the waiting period applicable to the transactions contemplated by this Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), has not terminated or expired in which case Merger Sub may not extend the offer past the date set forth in Section 9.2(i), or (y) extend the Offer for such period as may be required by any rule, regulation, interpretation or position of the Securities and Exchange Commission ("SEC") or the staff thereof applicable to the Offer or (z) extend the Offer for one (1) or more periods (each such period to be for not more than five (5) Business Days and such extensions to be for an aggregate period of not more than fifteen (15) Business Days beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) of this sentence) if on such expiration date the Offer Conditions shall have been satisfied or waived, but there shall not have been tendered that number of Shares which would equal more than ninety percent (90%) of the Shares issued and outstanding on a fully- diluted basis. Parent shall cause Merger Sub to, and agrees to use its best efforts to, consummate the Offer as soon as legally permissible, subject to Merger Sub's right to extend the Offer as provided in this Section 1.1(b)(ii).
(iii) Merger Sub agrees that if all of the Offer Conditions are not satisfied on the Scheduled Expiration Date, then, provided that all such conditions are and continue to be reasonably probable of being satisfied by the date that is forty-five (45) days after the commencement of the Offer, Purchaser Merger Sub shall pay, as promptly as practicable extend the Offer for one period of not more than five (5) Business Days if requested to do so by the Company; provided that Merger Sub shall not be required to extend the Offer beyond forty-five (45) days after expiration commencement of the OfferOffer or, if earlier, the date of termination of this Agreement in accordance with the terms hereof.
(iv) On the terms of the Offer and subject to the satisfaction or waiver of the Offer Conditions and the terms of this Agreement, Merger Sub shall (A) be obligated to purchase all Shares validly tendered and not withdrawn on the earliest date that all of the Offer Conditions are satisfied or waived and (B) pay for all Shares validly tendered and not withdrawn.
(b) As promptly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as reasonably soon as practicable on after the date of commencement expiration of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto. Notwithstanding any other provision of this Agreement, the "Schedule 14D-1") with respect Stock Option Agreement or the Shareholders Agreement, any reference to a majority of the total issued and outstanding shares or Shares, or shares or Shares outstanding on a fully diluted basis, or similar references, shall, for purposes of such agreements, exclude from the determination thereof any shares of Common Stock issuable upon exercise of or subject to the Offer Stock Option Agreement and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements theretoany reference to beneficial ownership of shares of Common Stock or similar references shall, for purposes of such agreements, exclude from the "Schedule 13E-3") with respect determination thereof any shares of Common Stock issuable upon exercise of or subject to the Offer and -------------- Stock Option Agreement and/or the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsShareholders Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dupont E I De Nemours & Co)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 Article IX, and none of the events set forth in paragraphs (a), (b), (c) (to the extent performance is required theretofore), (e) and (f) of Annex A I hereto shall have occurred or and be existingcontinuing, Purchaser shall commence the Offer as promptly as reasonably practicable and in any event within ten (10) Business Days after the date hereof, MergerSub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase all outstanding Company Common Shares at the Offer Price, and shall, upon commencement of the Offer but in no event later than five business days after affording the initial public announcement of Purchaser's intention Company reasonable opportunity to commence the Offer. The obligation of Purchaser to accept for payment review and pay for Shares tendered pursuant comment thereon, file a Tender Offer Statement on Schedule TO with respect to the Offer shall be subject to (together with all amendments and supplements thereto and including exhibits thereto, the condition “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the "Minimum Condition"“SEC”) that at least a majority of and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the then outstanding ----------------- SharesExchange Act, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of in each case in connection with the Offer (the “Offer Documents”), and also shall be subject use its commercially reasonable efforts to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in consummate the Offer, and subject to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offerthereof. Subject to the terms and conditions of this Agreement and to the Offersatisfaction or waiver of the conditions set forth in Annex I hereto (the “Tender Offer Conditions”), Purchaser shall payMergerSub shall, as promptly soon as practicable possible after the expiration of the OfferOffer (or, if applicable, the expiration of the “initial offering period”), accept for payment, and pay for (after giving effect to any required withholding Tax), all Company Common Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect pursuant to the Offer and not withdrawn (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements theretothe first date of acceptance for payment, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined“Acceptance Date”). The Schedule 14D-1 MergerSub and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company each agree promptly to correct promptly any information provided by any of them it for use in the Offer Documents which if and to the extent that it shall have become false or misleading, misleading in any material respect and Gambro, Parent and Purchaser further agree to MergerSub shall take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 TO, as so corrected or supplemented, to be filed with the SEC and the other Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Sharesshares, in each case as and to the extent required by applicable federal Federal securities laws. MergerSub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comment (written or oral) that may be received by MergerSub or its counsel from the SEC or its staff with respect to the Offer Documents as promptly as practicable after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment on any such written and oral comments and proposed responses.
(b) Without the prior written consent of the Company, MergerSub shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Company Common Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Company Common Shares. MergerSub may, in its sole and absolute discretion, increase the price per Company Common Share payable in the Offer without the consent of the Company. The initial expiration date of the Offer shall be the twentieth business day (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act). MergerSub expressly reserves the right to waive any condition to the Offer (provided that any waiver of the Minimum Tender Condition shall require the prior written consent of the Company) or modify the terms of the Offer, subject to compliance with the Exchange Act and the first sentence of this subsection (b); provided that all such modifications to the terms of the Offer (other than a modification to increase the Offer Price or to waive a condition to the Offer) shall not, in the aggregate, reasonably be expected to delay the Acceptance Date by more than ten Business Days after the first public dissemination of notice of any such modification. Except as expressly provided in this subsection (b), MergerSub shall not extend the Offer if all of the conditions of the Offer are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for tendered shares. Notwithstanding the foregoing, MergerSub shall extend the Offer at any time, and from time to time: (1) if at the then-scheduled expiration date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; provided that any extension shall be in increments of not more than three Business Days (unless a longer period of time is agreed to by the Company in writing, such agreement not to be unreasonably withheld); (2) for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer; or (3) if all of the Tender Offer Conditions are satisfied or waived, and Company Common Shares have been accepted for payment, but the number of Company Common Shares acquired by MergerSub (together with other Company Common Shares owned of record by the Buyer Parties or any of their Affiliates) represent less than 90% of the votes entitled to be cast by the holders of the then outstanding number of Company Common Shares and Company Series D Preferred Shares (after reflecting and taking into account any adjustment to the number of votes such holders have relative to holders of Company Common Shares in accordance with the terms of the Company Series D Preferred Shares), voting together as a class, for an aggregate period of not more than ten Business Days (for all such extensions pursuant to this clause (3)) as a “subsequent offering period” (the “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act. Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any date on which the Offer is scheduled to expire, MergerSub will accept for payment and pay for all Company Common Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after such date.
Appears in 2 contracts
Samples: Merger Agreement (Centro Properties LTD), Merger Agreement (New Plan Excel Realty Trust Inc)
The Offer. (a) Provided that this Agreement --------- nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Section 7.01 and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in paragraphs (ii)(a) - (ii)(g) of Annex A hereto shall have occurred or be existingI hereto, Purchaser shall commence the Offer then as promptly as reasonably practicable after the date hereof, but hereof (and in no any event later than five within eight (8) business days of the date of this Agreement), Merger Sub shall (A) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer (the "Offer") to purchase any and all of the outstanding shares of Company Common Stock at a price per Share equal to the Per Share Amount, net to the seller in cash, without interest and (B) after affording the initial public announcement Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "Schedule TO") and all other necessary documents (collectively, the "Offer Documents") with the Securities and Exchange Commission (the "SEC"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Purchaser's intention to commence Rule 14d-4 under the OfferExchange Act in each case in connection with the Offer Documents. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the Expiration Date (as hereinafter defined) a number of Shares that, together with the Shares then owned by Parent and/or Merger Sub or any other subsidiary of Parent, represents at least a majority of the Shares outstanding on a Fully-Diluted Basis (as hereinafter defined) (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A I hereto. Purchaser Merger Sub expressly reserves the right to waive any such condition, of the conditions to increase the price per Share payable in the Offer, Offer and to make any other changes change in the terms and of or conditions to the Offer, provided that without the prior written consent of the Offer; providedCompany, -------- however, that (i) the Minimum Condition may not be waived except with waived, (ii) the prior ------- written consent condition to the Offer that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the Special Committee; and provided further that "XXX Xxx") xx xxxer any applicable foreign antitrust statutes or regulations shall have expired or been terminated (the "Regulatory Condition") may not be waived, (iii) no -------- ------- change may be made which that changes the form of consideration to be paid, decreases the price per Per Share payable Amount or the number of Shares sought in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject I and (iv) no other change may be made to applicable withholding any term of taxes, be net the Offer in any manner adverse to the seller in cash, upon the terms and subject to the conditions holders of the OfferShares. Subject Notwithstanding the foregoing, except as otherwise provided in this Section 1.01(a), without the consent of the Company, Merger Sub shall have the right to the terms and conditions of extend the Offer, Purchaser shall payprovided that such extension does not extend beyond the later of (x) July 31, as promptly as practicable 2003 and (y) the date that is 30 days after expiration the date that the Company has complied with its obligations under Section 6.03 (the "Outside Date") (i) from time to time if, at the scheduled or extended Expiration Date, any of the Offerconditions to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived or (ii) for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law. The Offer shall remain open until 12:00 midnight on the date of that is twenty (20) business days after the commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission Offer (the "SECExpiration Date")
(i) a Tender , unless Merger Sub shall have extended the period of time for which the Offer Statement on --- Schedule 14D-1 (together with all amendments is open pursuant to, and supplements theretoin accordance with, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (terms of this Agreement or as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.may be
Appears in 2 contracts
Samples: Merger Agreement (Elite Information Group Inc), Merger Agreement (Elite Information Group Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and (1) none of the events or circumstances set forth in paragraphs (a) through (f) of Annex A hereto shall have occurred or and be existingexisting (and shall not have been waived by Purchaser) and (2) the Company shall have complied with its obligations under Section 1.2 hereof, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable after the date hereof, but in no event later than five business days seven Business Days after the initial public announcement of Purchaser's intention to commence the Offerexecution of this Agreement (which initial public announcement shall occur no later than the first Business Day following execution and delivery of this Agreement). The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only (x) to the satisfaction of the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and also shall not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents at least 60% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be subject required to issue as of such date pursuant to options, warrants, rights, convertible or exchangeable securities (including the Convertible Securities) or similar obligations then outstanding, but only to the extent then vested or exercisable or capable of being vested or exercisable on or prior to the Walk-Away Date) (the “Minimum Condition”), and (y) to the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditionconditions (other than the Minimum Condition), to increase the price per Share payable in the Offer, Offer and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition no change may not be waived except with made without the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made Company which decreases the price per Share payable in the Offer or which Offer, changes the form of consideration to be paid in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer or which Offer, imposes conditions to the Offer in addition to those the conditions set forth in Annex A hereto, waives the Minimum Condition, or modifies or amends any of the conditions set forth in Annex A hereto 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 expiration date of the Offer. Notwithstanding the foregoing, Purchaser shall extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. In addition, (i) if at the initial scheduled expiration date, which shall be 20 Business Days following the date of commencement of the Offer, or any subsequent scheduled expiration date, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived, Purchaser shall extend the Offer in increments of not more than 10 Business Days each until such time as such conditions are satisfied or waived; provided that Purchaser shall not be required to extend the Offer beyond the Walk-Away Date (as defined in Section 7.1(b)(iii)); subject, however, to the parties’ respective rights to terminate this Agreement pursuant to Section 7.1, and (ii) if the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, constitutes less than 90% of the Shares then outstanding, without the consent of the Company, Purchaser shall (subject to applicable law) have the right to, and at the request of the Company shall, provide for a “subsequent offering period” (as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 Business Days after Purchaser’s acceptance for payment of the Shares then tendered and not withdrawn pursuant to the Offer, in which event Purchaser shall (A) give the required notice of such subsequent offering period and (B) immediately accept for payment and promptly pay for all Shares validly tendered and not withdrawn as of such expiration date. 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, Purchaser shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable law. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Per Share Amount Offer Price shall, subject to applicable any required withholding of taxesTaxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments amendments, supplements and supplements exhibits thereto, the "“Schedule 14D-1"TO”) with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined)Offer. The Schedule 14D-1 and the Schedule 13E-3 TO shall contain 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 all other ancillary Offer documents (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documentscollectively, together with all amendments, supplements and amendments exhibits thereto, being referred to herein collectively as the "“Offer Documents"”). Gambro, Parent, Purchaser and The Company shall promptly provide Parent with all information concerning the --------------- Company agree that is required to correct promptly any information provided by any of them for use be included in the Offer Documents which shall have become false or misleading, and Gambro, Documents. Parent and Purchaser further agree to take all steps necessary to shall cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the holders of Shares, in each case the Shares as and to the extent required by applicable federal securities laws. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and 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 the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser agree to provide the Company and its counsel with any comments, whether written or oral, that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, to consult with the Company and its counsel prior to responding to any such comments and to provide the Company with copies of all such responses, whether written or oral.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Quixote Corp), Merger Agreement (Quixote Corp)
The Offer. (a) Provided Provided, that nothing shall have occurred that gives rise to a right of Parent to terminate the Offer or this Agreement --------- shall not have been terminated in accordance with Section 7.01 and Agreement; provided, further, that none of the events conditions set forth in Sections (iii)(c) through (iii)(e) of Annex A hereto shall have occurred or and be existingcontinuing as of the date that Purchaser would otherwise commence the Offer; and provided, further, that the Company has fulfilled its obligation to provide information to Parent and Purchaser on a timely basis as contemplated by Section 2.1(f), Purchaser shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after . Parent or Purchaser shall provide the initial public announcement of Purchaser's intention Company with prior written notice if Purchaser fails to commence the Offer. Offer within 10 business days of the date of this Agreement together with a brief explanation of the reasons therefore.
(b) The obligation of Purchaser to accept for payment payment, purchase and pay for any Company Shares tendered pursuant to the Offer shall be subject to (x) the condition (the "“Minimum Condition"”) that at least a majority that number of Company Shares equal to (i) fifty percent (50%) of the then outstanding ----------------- SharesCompany Shares on a fully diluted basis (including all Company Shares potentially issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights (other than Shares owned beneficially by the Rights) including the Company RSUs, in each case, which are convertible or of record by Gambro, Parent, Purchaser or any of their affiliatesexercisable prior to the Outside Date but excluding the Subject Shares) plus (ii) the Subject Shares, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of (y) the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such conditioncondition (other than the Minimum Condition which may not be amended or waived), to increase the price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with without the prior ------- written consent of the Special Committee; and provided further that Company no -------- ------- change may be made which that decreases the price per Company Share payable in the Offer or which Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Company Shares sought to be purchased in the Offer or which imposes Offer, adds to the conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxesextends the Offer other than as set forth in this Section 2.1, be net or modifies or amends any condition to the seller Offer in cash, upon the terms and subject any manner adverse to the conditions holders of the Offer. Company Shares.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), unless 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 2.1(c) (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire). Purchaser shall paymay, as promptly as practicable after without the consent of the Company, extend the Offer for one or more periods beyond the scheduled expiration date if, at the scheduled expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement any of the Offerconditions to Purchaser’s obligation to accept Company Shares for payment shall not be satisfied or waived, for such period of time as Purchaser reasonably determines to be necessary to permit such conditions to be satisfied or waived. In addition, Purchaser shall file with extend the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.Offer:
Appears in 2 contracts
Samples: Merger Agreement (Intel Corp), Merger Agreement (Wind River Systems Inc)
The Offer. (a) Provided that Unless this Agreement --------- shall not have has been terminated in accordance with Section 7.01 and none 8.1, Sub shall commence, within the meaning of Rule 14d-2 under the events set forth in Annex A hereto shall have occurred or be existingSecurities Exchange Act of 1934, Purchaser shall commence as amended (the "Exchange Act"), the Offer as promptly as reasonably practicable after the date hereof, (but in no event later than five the fifth business days after day from and including the date of initial public announcement of Purchaser's intention this Agreement). Sub shall accept for payment Shares which have been validly tendered and not withdrawn pursuant to commence the OfferOffer following expiration of the Offer promptly following the time that all conditions to the Offer shall have been satisfied or waived by Sub, except that the Minimum Condition (as hereinafter defined) may not be waived. The obligation of Purchaser Sub to accept for payment payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A and to the further condition (the "Minimum Condition") that at least a number of Shares which, together with any Shares beneficially owned by Falcon or Sub, represent not less than a majority of the Shares then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, on a Fully Diluted Basis (as hereinafter defined) shall have been validly tendered and not withdrawn prior to the final expiration date of the Offer and also shall be subject to (the satisfaction "Minimum Condition"). "Fully Diluted Basis" means, as of any time, all of the other conditions set forth Shares plus all shares of Xxxxxx Xxxxxxxx Common Stock required to be issued or issuable pursuant to options, warrants, securities or obligations of any kind under employee stock or similar benefit plans or otherwise, whether or not vested or exercisable. Unless previously approved by Xxxxxx Xxxxxxxx in Annex A hereto. Purchaser expressly reserves the right to waive any such conditionwriting, to increase the price per Share payable no change in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change Offer may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.decreases the
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Falcon Products Inc /De/), Merger Agreement (Falcon Products Inc /De/)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 7.1 and none of the events set forth in Annex A hereto shall have occurred and be continuing (and shall not have been waived by Purchaser or be existingMerger Sub), Purchaser Merger 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 promulgated thereunder, the “Exchange Act”)) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five (5) business days after from the initial public announcement date of Purchaser's intention to commence this Agreement, and the OfferOffer shall remain open at least twenty (20) business days (as defined in Rule 14d-1(g)(3) of the Exchange Act) from commencement of the Offer (the “Initial Expiration Date”). The obligation of Purchaser Merger Sub to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the satisfaction or the waiver by Purchaser or Merger Sub of the following conditions: (i) there being validly tendered and not withdrawn prior to the expiration of the Offer (x) that number of shares of Common Stock which, together with any shares of Common Stock then owned by Purchaser or Merger Sub (without giving effect to shares subject to purchase under the Stock Option Agreement or the Stockholders Agreement), represents greater than 90% of the shares of Common Stock outstanding and (y) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of Convertible Preferred Stock which, together with any shares of Convertible Preferred Stock then owned by Purchaser or Merger Sub (without giving effect to shares subject to purchase under the Stock Option Agreement the Stockholders Agreement), represents 100% of the Convertible Preferred Stock outstanding (clauses (x) and (y) together, the “Minimum Condition”); and (ii) the other conditions set forth in Annex A hereto. Subject to the prior satisfaction or waiver by Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, Merger Sub shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditionconditions, to increase either or both of the price per Share payable in the Offer, Offer Prices and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that Merger Sub shall not, and Purchaser shall cause Merger Sub not to, decrease either of the Minimum Condition may not be waived Offer Prices, 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 Initial Expiration Date except with as set forth below, or amend any other condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may Company (such consent to be made which decreases authorized by the price per Share payable in Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, (i) if, at any scheduled expiration of the Offer any of the conditions to Merger Sub’s obligation to accept Shares for payment shall not be satisfied or which reduces waived, extend the maximum number of Shares Offer beyond the Initial Expiration Date for a time period reasonably necessary to permit such condition to be purchased in satisfied, or (ii) extend the Offer for any period required by any rule, regulation or which imposes conditions interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. Merger Sub may, without the consent of the Company, extend the Offer in addition to those set forth in Annex A heretoaccordance with Rule 14d-11 under the Exchange Act. The Per Share Amount shallIn addition, subject to applicable withholding either or both of taxes, the Offer Prices may be net increased and the Offer may be extended to the seller extent required by law in cashconnection with such increase, upon in each case without the terms and subject to the conditions consent of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawnCompany.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser Merger Sub shall file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments and supplements thereto, the "“Schedule 14D-1"TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and all other ancillary Offer documents (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (collectively, together with all amendments and supplements thereto, the "Schedule 13E-3") with respect “Offer Documents”). Purchaser and Merger Sub shall cause the Offer Documents to be disseminated to the Offer holders of the Shares as and -------------- to the extent required by applicable federal securities laws. Purchaser and Merger Sub, on the one hand, and the Company, on the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1hand, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to will promptly correct promptly any information provided by any of them it for use in the Offer Documents which if and to the extent that it shall have become false or misleadingmisleading in any material respect, and Gambro, Parent and Purchaser further agree to take all steps necessary to Merger Sub will cause the Schedule 14D-1 and the Schedule 13E-3 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of 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 the Schedule TO before it is filed with the SEC. In addition, Purchaser and Merger Sub agree to provide the Company and its counsel with any comments, whether written or oral, that Purchaser or 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 to consult with the Company and its counsel prior to responding to any such comments.
(c) Purchaser and Merger Sub will file with the Commissioner of Commerce of the State of Minnesota and disseminate to the shareholders of the Company any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes.
Appears in 2 contracts
Samples: Merger Agreement (Safenet Inc), Merger Agreement (Safenet Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 9.01 below and none of the events set forth in clauses (a) through (i) of Annex A hereto shall have occurred or and be existingcontinuing to exist, 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 five 10 business days after the initial public announcement of Purchaser's intention to commence the execution and delivery of this Agreement. The initial expiration date of the Offer shall be 20 business days after the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority the number of Shares that shall constitute fifty and six-tenths percent (50.6%) of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, on a Fully Diluted Basis 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 Annex A hereto. Purchaser expressly reserves the right to waive any such conditioncondition other than the Minimum Condition, to increase the cash price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that without the Minimum Condition may not be waived except with the Company's prior ------- written consent of the Special Committee; and provided further that consent, no -------- ------- change may be made which decreases the cash price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A heretohereto or which otherwise adversely affects the holders of Shares. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer from time to time for the shortest time periods which the Purchaser reasonably believes are necessary until the consummation of the Offer, (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer equals 80% or more, but less than 90%, of outstanding Shares on a Fully Diluted Basis. In addition, if, on the then applicable expiration date of the Offer, the sole condition(s) remaining unsatisfied are (i) the failure of the waiting period under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act") or under any applicable material non-United States statutes or regulations, (ii) the process pursuant to the Exon-Florxx Xxxvision (as hereinafter defined) has not been completed, and/or (iii) any waiting period applicable to the consummation of the Offer under the Arms Regulations shall not have expired or been terminated then, Purchaser shall extend the Offer from time to time until 11 7 the earlier to occur of (i) January 31, 2001 and (ii) the fifth business day after the latest to occur of (A) the expiration or termination of the applicable waiting period under the HSR Act or any applicable material non-United States statutes or regulations, (B) the satisfaction of any requirements under the Exon-Florxx Xxxvision, as applicable, and (C) the expiration or termination of the waiting period under the Arms Regulations. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject Purchaser shall pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall paybe effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission amended (the "SECExchange Act")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, . If the "Schedule 14D-1") with respect payment equal to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase Per Share Amount in cash (the "Offer to PurchaseMerger Consideration") and forms 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 related letter Company, it shall be a condition of ----------------- transmittal payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and any related summary advertisement (that the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and person requesting such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which payment shall have become false paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and shall have established to the extent required by applicable federal securities lawssatisfaction of Purchaser that such taxes either have been paid or are not applicable.
Appears in 2 contracts
Samples: Merger Agreement (Ericsson MPD Acquisition Corp), Merger Agreement (Microwave Power Devices Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred or and be existingexisting (and shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable after the date hereofpracticable, but in no event later than five business days ten (10) Business Days, after the initial public announcement date of Purchaser's intention this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and also shall not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be subject required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditionconditions (other than the Minimum Condition), to increase the price per Share payable in the Offer, Offer and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition no change may not be waived except with made without the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made Company which decreases the price per Share payable in the Offer or which Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer or which Offer, imposes conditions to the Offer in addition to those to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any 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 expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of 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, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) 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 any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Per Share Amount Offer Price shall, subject to applicable any required withholding of taxesTaxes, be net to the seller sellers in cash, upon the terms and subject to the conditions of the Offer. Subject to The Company agrees that no shares of Company Common Stock held by the terms and conditions Company or any of its Subsidiaries will be tendered in the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments amendments, supplements and supplements exhibits thereto, the "“Schedule 14D-1"TO”) with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined)Offer. The Schedule 14D-1 and the Schedule 13E-3 TO shall contain 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 all other ancillary Offer documents (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documentscollectively, together with all amendments, supplements and amendments exhibits thereto, being referred to herein collectively as the "“Offer Documents"”). GambroParent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, Parenton the one hand, Purchaser and the --------------- Company agree to Company, on the other hand, shall promptly correct promptly any information provided by any of them for use in the Offer Documents which if and to the extent that it shall be or shall have become false or misleadingmisleading in any material respect, and Gambro, Parent and Purchaser further agree to take all steps necessary to shall cause the Schedule 14D-1 and the Schedule 13E-3 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case case, as and to the extent required by applicable federal securities lawsLaws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses.
(c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.
Appears in 2 contracts
Samples: Merger Agreement (Collagenex Pharmaceuticals Inc), Merger Agreement (Galderma Laboratories, Inc.)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 8.01 hereof and none of the events set forth in clauses (a) through (g) of Annex A I hereto shall have occurred or be existingexist, the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as reasonably practicable after the date hereof, but in no any event not later than five (5) business days after following the initial public announcement of Purchaser's intention to commence the Offerdate hereof. The obligation of Purchaser to accept initial expiration date for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition October 15, 1999 (the "Minimum ConditionExpiration Date") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto). Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on practicable, the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a the Purchaser's Tender Offer Statement on --- Schedule 14D-1 (the "Schedule 14D-1" and together with all the documents therein pursuant to which the Offer will be made, and with any supplements or amendments and supplements thereto, the "Schedule 14D-1Offer Documents") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto), the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions which shall contain (as hereinafter defined). The Schedule 14D-1 and an exhibit thereto) the Schedule 13E-3 shall contain or shall incorporate by reference an offer Purchaser's Offer to purchase Purchase (the "Offer to Purchase") that shall be mailed to the holders of Shares with respect to the Offer. The obligation of Parent and forms the Purchaser to accept for payment or pay for any Shares tendered pursuant to the Offer will be subject only to there being validly tendered and not withdrawn prior to the expiration of the related letter Offer, that number of ----------------- transmittal and Shares which represents at least seventy-five percent of the Shares entitled to vote that are outstanding on a fully diluted basis (without giving pro forma effect to the potential issuance of any related summary advertisement Shares issuable under the Stock Option Agreement) (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer DocumentsMinimum Condition"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal satisfaction or waiver of each condition set forth in Annex I hereto (the term "fully diluted basis" in reference to the Shares means all outstanding securities laws.entitled generally to vote in the election of directors of the Company on a fully diluted basis, after giving effect to the exercise or conversion of all options, warrants, rights and securities exercisable or convertible into such voting securities). Without the prior written consent of the Company, the Purchaser shall not (i) decrease the Offer Price or 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; or (iv) amend any other term of the Offer in any manner adverse to the holders of any Shares; provided, however, that if on the Expiration Date all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time in its sole discretion, extend the Expiration Date (each extension to be for ten business days or less); provided, further, that the Expiration Date shall in no event be extended past October 31, 1999 without the written consent of the Company. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and purchase, as soon as practicable after the expiration of the Offer, all Shares validly tendered and not withdrawn prior to the expiration of the
Appears in 2 contracts
Samples: Merger Agreement (Effective Management Systems Inc), Merger Agreement (Ifs Ab)
The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing8.1, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, (but in no any event not later than five ten business days after the initial public announcement of Purchaser's intention to commence the Offer), Parent will cause Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), the Offer whereby Purchaser will offer to purchase for cash all of the Shares at the Per Share Amount, net to the seller in cash (subject to reduction for any stock transfer taxes payable by the seller if payment is to be made to an individual or entity other than the Person in whose name the certificate for such Shares is registered or any applicable federal back-up withholding). For purposes of this Agreement, "PERSON" shall mean an individual, corporation, limited liability company, limited liability partnership, partnership, association, trust, unincorporated organization or other entity or group (as defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act). Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time (as defined in Section 2.2 hereof), the outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Per Share Amount will be correspondingly adjusted on a per- share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Parent to cause Purchaser to commence the Offer, to consummate the Offer and to accept for payment and to pay for Shares validly tendered pursuant to in the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall in accordance therewith will be subject to the satisfaction of the other to, and only to, those conditions set forth in Annex ANNEX A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission hereto (the "SECOFFER CONDITIONS")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate terms of which are hereby incorporated herein 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsreference.
Appears in 2 contracts
Samples: Merger Agreement (Funco Inc), Merger Agreement (Barnes & Noble Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser The Company shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offerpracticable. The obligation of Purchaser the Company to commence the Offer and to accept for payment payment, and to pay for Shares any shares of WorldPort Common Stock tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject only to the satisfaction of the other conditions set forth in Annex A heretoEXHIBIT D (the "OFFER CONDITIONS"). Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly soon as reasonably practicable on following execution of this Agreement, the date of commencement of the Offer, Purchaser Company shall file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement and a Rule 13e-3 Transaction Statement on --- Schedule 14D-1 TO, including all exhibits thereto (together with all amendments and supplements thereto, the "Schedule 14D-1SCHEDULE TO") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements theretoOffer, the "Schedule 13E-3") with respect to the Offer Merger and -------------- the other Transactions (as hereinafter defined)transactions contemplated hereby. The Schedule 14D-1 and the Schedule 13E-3 TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to PurchaseOFFER TO PURCHASE") and forms of the related letter of ----------------- transmittal and any related summary advertisement documents (the Schedule 14D-1, the Schedule 13E-3TO, the Offer to Purchase and such other documents, together with all supplements and or amendments thereto, being referred to herein collectively as collectively, the "Offer DocumentsOFFER DOCUMENTS"). Gambro, Parent, Purchaser Heico and the --------------- Company agree JOHCM shall each use their commercially reasonable efforts to correct promptly any information provided by any of them for use in ensure that (i) the Offer Documents which shall have become false or misleadingcomply in all material respects with the requirements of the Exchange Act, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause (ii) on the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be date filed with the SEC and on the date first published, sent or given to WorldPort'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. If at any time prior to the Effective Time, Heico or JOHCM discovers any information relating to either party, or any of their respective Affiliates, officers or directors, that should be set forth in an amendment or supplement to the schedule to, so that the document will not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the party that discovers any misleading information shall promptly notify the other Offer Documents as so corrected to parties hereto and an appropriate amendment or supplement describing the information shall be disseminated to holders of Sharespromptly filed with the SEC and, in each case as and to the extent required by applicable federal securities lawslaw or regulation, disseminated to the shareholders of WorldPort.
Appears in 2 contracts
Samples: Joint Venture and Securityholders Agreement (Worldport Communications Inc), Joint Venture and Securityholders Agreement (Heisley Michael E Et Al)
The Offer. (a) Provided Provided, that this Agreement --------- shall not have been terminated in accordance with Section 7.01 its terms and provided that none of the events set forth in clause (iii)(a) of Annex A hereto shall have occurred and subject to there being no Order enjoining, restraining or be existingotherwise prohibiting the commencement of the Offer and no Law having been enacted, entered, enforced, promulgated, amended, issued or deemed applicable to Parent, the Company or any subsidiary or affiliate thereof having such effect, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable practicable, but no later than ten (10) business days (commencing with the first business day after the date of this Agreement), after the date hereof. Following such launch, but in no event later than five business days after the initial public announcement each of Purchaser's intention Parent and Purchaser shall use its reasonable best efforts to commence consummate the Offer. , subject to the terms and conditions hereof.
(b) The obligation of Purchaser to accept for payment payment, purchase and pay for any Company Shares tendered pursuant to the Offer (and not validly withdrawn) shall be subject to the satisfaction or waiver pursuant to the terms hereof of (x) the condition (the "“Minimum Condition"”) that at least a majority that number of the then outstanding ----------------- Shares, other than Company Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and also shall be subject (other than Company Shares tendered by guaranteed delivery where actual delivery has not occurred), when added to any Company Shares already owned by Parent or any of its controlled subsidiaries, if any, equal a majority of the sum of the then outstanding Company Shares plus (without duplication) a number equal to the satisfaction number of Company Shares issuable upon the vesting (including vesting solely as a result of the consummation of the Offer), conversion, settlement or exercise of all then outstanding warrants, options, benefit plans, obligations or securities convertible or exchangeable into Common Shares, or other rights to acquire or be issued Common Shares (including then outstanding Company Stock Options and Company RSUs, assuming the effectiveness thereof occurred on the Expiration Date), in each case, with an exercise or conversion price below the Per Share Amount and (y) the other conditions set forth in Annex A heretohereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such conditioncondition (other than the Minimum Condition which may not be amended or waived), to increase the price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with without the prior ------- written consent of the Special Committee; and provided further that Company no -------- ------- change may be made which that decreases the price per Per Share Amount (except as provided in Section 2.1(h)), changes the form of consideration payable in the Offer or which reduces Offer, adds to the maximum conditions to the Offer, decreases the number of Company Shares sought to be purchased in the Offer, extends the Offer other than in a manner pursuant to and in accordance with the terms of this Section 2.1 or which imposes conditions modifies or amends any condition to the Offer in addition any manner that broadens such conditions or is adverse to those the holders of Company Shares.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), unless 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 2.1 or as required by applicable Laws or the interpretations of the SEC (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire).
(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 9.1, (i) Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the Nasdaq Stock Market that is applicable to the Offer and (ii) if, on the initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Purchaser shall extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of up to 10 business days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this Section 2.1(d), (A) if any of the events set forth in clause (iii)(a) of Annex A hereto. shall have occurred on or before the initial Expiration Date or the end of any Additional Offer Period, in no event shall Purchaser be required to extend the Offer beyond the initial Expiration Date or end of such Additional Offer Period, as applicable; (B) if, at the initial Expiration Date or the end of any Additional Offer Period, all of the Tender Offer Conditions, except for the Minimum Condition, are satisfied or have been waived, Purchaser shall only be required to extend the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for one or more additional periods not to exceed an aggregate of 20 business days, to permit the Minimum Condition to be satisfied; and (C) in no event shall Purchaser be required to extend the Offer beyond the Outside Date; provided further, that the foregoing clauses (i) and (ii) of this Section 2.1(d) shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Section 9.1.
(e) In the event that this Agreement is terminated pursuant to Section 9.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer.
(f) The Per Share Amount shall, subject to applicable withholding of taxesTaxes, be net to the applicable seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offerthis Agreement, Purchaser or Parent on Purchaser’s behalf shall pay, as promptly as practicable after expiration of the Offer, accept for payment and pay for all Company Shares validly tendered and not withdrawnwithdrawn promptly following the expiration of the Offer; provided, however, that without the prior written consent of the Company, Purchaser shall not accept for payment or pay for any Company Shares if, as a result, Purchaser would acquire less than the number of Company Shares necessary to satisfy the Minimum Condition. The time at which Purchaser first accepts for payment the Company Shares tendered in the Offer is referred to as the “Acceptance Time”. If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(bg) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments and supplements thereto, the "“Schedule 14D-1"TO”) with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined)Offer. The Schedule 14D-1 and the Schedule 13E-3 TO shall contain or shall incorporate by reference an offer to purchase (the "“Offer to Purchase"”) and forms form of the related letter of ----------------- transmittal and any related summary advertisement other ancillary documents pursuant to which the Offer will be made (the Schedule 14D-1, the Schedule 13E-3TO, the Offer to Purchase and such other documents, together with all exhibits, supplements and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). Gambro, Purchaser shall use its reasonable best efforts to cause the Offer Documents to be disseminated to holders of Company Shares in all material respects to the extent required by applicable federal securities laws. Parent and Purchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws. Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which that shall have become false or misleadingmisleading in any material respect, and Gambro, Parent and Purchaser further agree to take all steps necessary use reasonable best efforts to cause the Schedule 14D-1 and the Schedule 13E-3 TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Company Shares, in each case in all material respects as and to the extent required by applicable federal securities laws. The Company shall promptly furnish to Purchaser or Parent all information concerning the Company that is required or reasonably requested by Purchaser or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 2.1(g). Parent and Purchaser shall give the Company and its counsel a reasonable opportunity to review and comment on the Schedule TO before it is filed with the SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by Company and its counsel. In addition, Parent and Purchaser agree to (i) provide the Company and its counsel in writing with any written comments Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, (ii) use reasonable best efforts to provide a reasonably detailed description of any oral comments Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(h) If, between the date of this Agreement and the Acceptance Time, the outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to such Company Share shall be adjusted to the extent appropriate.
(i) Notwithstanding anything to the contrary set forth in Section 2.1(d), if, at any Expiration Date, all of the Tender Offer Conditions (including the Minimum Condition) shall have been satisfied or have been waived, but (i) there exists an uncured Financing Failure and (ii) such Financing Failure impedes the ability of Parent or Purchaser to accept Company Shares for payment in the Offer, then Purchaser shall be permitted to extend the Offer for one (1) or more successive periods as determined by Purchaser of up to ten (10) business days each (or any longer period as may be requested by Purchaser and approved in advance by the Company) until the Outside Date in order to permit such Financing Failure to be cured; provided, however, that notwithstanding any other provision of this Agreement, in the event Purchaser elects to extend the Offer pursuant to and in accordance with this Section 2.1(i), then each of Parent and Purchaser shall be deemed to have irrevocably waived all of the Tender Offer Conditions (other than the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, which shall remain in full force and effect) and its right to terminate this Agreement pursuant to Sections 9.1(b)(i), 9.1(b)(ii), 9.1(b)(iii), 9.1(c) (as it relates to the Tender Offer Condition contemplated by clause (iii)(d) of Annex A, but not as it relates to the Tender Offer Condition contemplated by clause (iii)(e) of Annex A), or 9.1(d) (it being acknowledged and agreed that, (A) notwithstanding such irrevocable waiver, without the prior written consent of the Company, neither Parent nor Purchaser shall be permitted to accept for payment (or pay for) any Company Shares that are tendered in the Offer unless the Minimum Condition is satisfied at such time, (B) during any extension of the Offer pursuant to this Section 2.1(i), the Company shall not exercise any remedies against Parent or Purchaser for failure to accept for payment (or pay for) any Company Shares that are tendered in the Offer, and (C) if for any reason other than a failure of the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, Purchaser does not accept for payment (and pay for) all Company Shares validly tendered in the Offer and not properly withdrawn at the expiration of such successive period(s), then Parent and Purchaser shall be deemed to be in breach of this Agreement).
Appears in 2 contracts
Samples: Merger Agreement (Microsemi Corp), Merger Agreement (Vitesse Semiconductor Corp)
The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing8.1, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, (but in no any event not later than five eight business days after the initial public announcement of Purchaser's intention to commence the Offer), Parent will cause Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), the Offer whereby Purchaser will offer to purchase for cash all of the Shares at the Per Share Amount, net to the seller in cash (subject to reduction for any stock transfer taxes payable by the seller if payment is to be made to an individual or entity other than the Person in whose name the certificate for such Shares is registered or any applicable federal back-up withholding). For purposes of this Agreement, "PERSON" shall mean an individual, corporation, limited liability company, limited liability partnership, partnership, association, trust, unincorporated organization or other entity or group (as defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act). Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time (as defined in Section 2.2 hereof), the outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Per Share Amount will be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Parent to cause Purchaser to commence the Offer, to consummate the Offer and to accept for payment and to pay for Shares validly tendered pursuant to in the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall in accordance therewith will be subject to the satisfaction of the other to, and only to, those conditions set forth in Annex ANNEX A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission hereto (the "SECOFFER CONDITIONS")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate terms of which are hereby incorporated herein 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsreference.
Appears in 2 contracts
Samples: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 8 and that none of the events or conditions set forth in clause (c), (d), (e)(ii), (e)(iii) (with respect to the Company’s obligations and covenants in Section 1.1(b), Section 1.2, Section 6.5(b) and Section 6.7(a)(iii)(A), and the Company’s representations and warranties in Section 3.2, Section 3.23, Section 3.24 and Section 3.26, in each case to the extent the same are required to be complied with, or be true and correct, as applicable, in order for Parent and Purchaser to commence the Offer), or (e)(iv) of Annex A hereto shall have occurred or and be existingcontinuing and shall not have been waived by Parent, Purchaser shall commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) the Offer as promptly as reasonably practicable and in any event no earlier than five (5) business days after the date hereof and no later than ten (10) business days after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares validly tendered pursuant to the Offer and to pay the Per Share Amount for each such tendered and not subsequently withdrawn Share shall be subject only to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A heretohereto (the “Tender Offer Conditions”). Purchaser expressly reserves the right to waive any such conditionTender Offer Condition, to increase the price per Per Share Amount payable in the Offer, and to make any other changes in to the terms and conditions of the Offer; provided, -------- however, that without the prior written consent of the Company (which consent shall not be unreasonably withheld with respect to clauses (iii)(D) or (iii)(E) below):
(i) the Minimum Condition (as defined in Annex A) may not be waived;
(ii) the conditions set forth in clause (b) (to the extent any such matter could result in a Restraint), clause (e)(i)(B), and clause (e)(ii) (insofar as it relates to clause (e)(i)(B)) in Annex A may not be waived except with the prior ------- written consent if any such waiver would be reasonably likely to result in personal liability to any director, officer, or employee of the Special Committeeany party hereto; and provided further that and
(iii) no -------- ------- change may be made which that (A) changes the form of consideration to be paid pursuant to the Offer, (B) decreases the price per Per Share Amount payable in the Offer or which Offer, (C) reduces the maximum number of Shares to be purchased in the Offer or which Offer, (D) imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net or (E) amends the Tender Offer Conditions set forth in Annex A hereto in any manner adverse to the seller in cash, upon the terms and subject to the conditions holders of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawnShares.
(b) As promptly as reasonably practicable on On the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "“SEC")
(i”) a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments and supplements thereto, the "“Schedule 14D-1"TO”) with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together that will comply in all material respects with the provisions of all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined)applicable Legal Requirements. The Schedule 14D-1 and the Schedule 13E-3 TO shall contain 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 14D-1, the Schedule 13E-3TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). Gambro, Each of Parent, Purchaser and the --------------- Company agree agrees to correct promptly any information provided by any of them it for use in the Offer Documents which if and to the extent that it shall have become false or misleadingmisleading in any material respect, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLegal Requirements. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). Parent and Purchaser shall give the Company and its counsel a reasonable opportunity to review and comment on the Offer Documents prior to such documents being filed with the SEC or disseminated to holders of Shares. Parent and Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Purchaser shall provide the Company (in writing, if written), and consult with the Company regarding, any comments (written or oral) that Parent or Purchaser or their counsel may receive from the SEC or the SEC Staff with respect to the Offer Documents promptly after receipt of such comments. The Company and its counsel shall be given a reasonable opportunity to review and comment on any proposed responses before they are filed with the SEC and to participate in the response of Parent and Purchaser to such comments.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) business day after the date that the Offer is commenced (the “Expiration Date”), unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, this Section 1.1(c) or as may be required by applicable Legal Requirements, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. Unless this Agreement is terminated in accordance with its terms, Purchaser shall extend the Offer from time to time if (i) any Tender Offer Condition is not satisfied (or, in accordance with Section 1.1(a) above, waived by Parent or Purchaser) on or before the Expiration Date; or (ii) if any applicable Legal Requirement, rule, regulation, interpretation or position of the SEC or the staff of the SEC (the “SEC Staff”) thereof applicable to the Offer requires such extension. Purchaser shall extend the Offer pursuant to the immediately preceding sentence for consecutive periods of up to ten (10) business days each (or for such period as may be required by any applicable Legal Requirement, rule, regulation, interpretation or position); provided, however, that Purchaser shall not be required to extend the Offer beyond the Outside Date. If this Agreement is terminated prior to the Acceptance Date, Purchaser shall promptly (and in any event within twenty-four (24) hours) irrevocably and unconditionally terminate the Offer (and return, or cause to be returned, all tendered Shares to the registered holders thereof).
Appears in 2 contracts
Samples: Merger Agreement (California Micro Devices Corp), Merger Agreement (On Semiconductor Corp)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 9.01 hereof and that none of the events set forth in Annex clauses (a) through (h) of ANNEX A hereto shall have occurred or be existingcontinuing, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT")) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five seven (7) business days after the initial public announcement of Purchaser's intention the execution of this Agreement; PROVIDED; HOWEVER, in the event the Company shall have failed to provide mailing labels to Purchaser pursuant to Section 2.02 hereof within five (5) business days after the initial public announcement of the execution of this Agreement, Purchaser shall commence the Offer. Offer within two (2) business days of receipt of such labels.
(b) The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to (x) the satisfaction of the condition (the "Minimum ConditionMINIMUM CONDITION") that at least the number of Shares that, when added to Shares, if any, already owned by Parent, shall constitute (A) a majority of the then outstanding ----------------- Common Shares (including, without limitation, all Common Shares issuable upon the conversion of the Series A Shares or upon the exercise or conversion of any options, warrants, rights or other convertible securities), or such higher percentage of such class of securities as may be required to approve the Merger pursuant to the Restated Certificate of Incorporation of the Company, as amended from time to time, or applicable Law, and (B) a majority of the then outstanding Series A Shares, other than Shares owned beneficially by or such higher percentage of record by Gambrosuch class of securities as may be required to approve the Merger pursuant to the Restated Certificate of Incorporation of the Company, Parentas amended from time to time, Purchaser or any of their affiliatesapplicable Law, shall have been validly tendered and not withdrawn prior to the expiration of the Offer Offer, and also shall be subject to (y) the satisfaction of each of the other conditions set forth in Annex ANNEX A hereto. .
(c) Purchaser expressly reserves the right to waive any such condition, to increase the price per Per Share payable in Common Amount and the OfferPer Share Preferred Amount, and to make any other changes in the terms and conditions of the Offer; providedPROVIDED, -------- howeverHOWEVER, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which (i) decreases the price per Per Share payable in Common Amount or the Offer Per Share Preferred Amount, (ii) increases the Per Share Preferred Amount such that the Per Share Preferred Amount is greater than the amount obtained by multiplying the Per Share Common Amount by two (2) or which the Per Share Common Amount such that the Per Share Common Amount is no greater than the amount obtained by dividing the Per Share Preferred Amount by two (2), (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) changes the form of consideration to be paid in the Offer, (v) extends the Offer or which except as provided in this Section 2.01, (vi) imposes conditions to the Offer in addition to those set forth in Annex ANNEX A heretohereto or amends the conditions set forth in ANNEX A to broaden the scope of such conditions, (vii) reduces or waives the Minimum Condition without the prior approval of the Company, or (viii) amends any other terms of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, in addition to its rights under paragraph (e) below, Purchaser may, without the consent of the Company, (A) extend the Offer for a period of not more than thirty (30) business days beyond the scheduled expiration date, which shall be twenty (20) business days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept Shares for payment, shall not be satisfied or waived, or (B) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer. In addition, if, on the initial scheduled expiration date of the Offer, the sole condition remaining unsatisfied is the failure of the waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), to have expired or been terminated, then Purchaser may extend the Offer from time to time until the earlier to occur of (i) December 31, 2002 and (ii) the fifth (5th) business day following the public announcement of the expiration or termination of the applicable waiting period under the HSR Act. Parent and Purchaser agree that, if any one or more of the conditions to the Offer set forth on ANNEX A are not satisfied and none of the events set forth in paragraphs (b), (f) or (g) of ANNEX A that would permit Purchaser not to accept Shares tendered for payment has occurred, then, PROVIDED that such other conditions set forth in ANNEX A are reasonably capable of being satisfied within thirty (30) days in Parent and Purchaser's sole judgment, Purchaser shall, at the request of the Company, extend the Offer from time to time unless any such condition is no longer reasonably capable of being satisfied within such thirty (30) day period in Parent and Purchaser's sole judgment; PROVIDED, HOWEVER, in no event shall Purchaser be required to extend the Offer beyond December 31, 2002.
(d) The Per Share Common Amount and the Per Share Preferred Amount shall, subject to applicable withholding of taxes, be paid net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, pay for all Shares validly tendered and not withdrawnwithdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. If the payment equal to the Per Share Common Amount or Per Share Preferred Amount or both, as the case may be, 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 the Per Share Common Amount or Per Share Preferred Amount or both, as the case may be, to a person other than the registered holder of the certificate surrendered, or shall have established to the reasonable satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(be) Purchaser may, in its sole discretion, provide a "subsequent offering period" as contemplated by Rule 14d-11 under the Exchange Act following its acceptance for payment of Shares in the Offer.
(f) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments and supplements thereto, the "Schedule 14D-1SCHEDULE TO") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined)Offer. The Schedule 14D-1 and the Schedule 13E-3 TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to PurchaseOFFER TO PURCHASE") and forms of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which that shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Purchaser shall give the Company and its counsel a reasonable opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC or dissemination to holders of Shares. Parent and Purchaser shall provide the Company and its counsel with any comments Parent or Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents after receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent or Purchaser to such comments.
Appears in 2 contracts
Samples: Merger Agreement (Bei Medical Systems Co Inc /De/), Merger Agreement (Bei Medical Systems Co Inc /De/)
The Offer. (a) Provided The Offer shall initially be made upon the Terms mutually agreed upon by the Members. The Members acknowledge that they have agreed to the Terms contained in the draft dated February 13, 1996 of the Offer Documents. If the Members are unable to agree on any additional Terms of the Offer within 20 days of the Effective Date, then, notwithstanding any other provision of this Agreement --------- to the contrary, the provisions of Section 4.01 shall not have been terminated in accordance with Section 7.01 be void and none of no effect, and the Manager shall liquidate and dissolve the Company as soon as practicable. All terms and conditions other than the Terms of the events set forth in Annex A hereto Offer (including any supplements and amendments thereto) shall have occurred or be existingdetermined by the Manager, Purchaser provided that such other terms and conditions must be reasonable and customary under the circumstances. Each Member shall commence provide all information reasonably requested by the Company to complete the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence Documents and consummate the Offer. The obligation Immediately following the Closing Date, the Company shall take all actions as are necessary for it to be admitted to the Partnership as a substitute Limited Partner as to all of Purchaser to accept for payment and pay for Shares tendered the Units purchased pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly Except as reasonably practicable on provided in Section 4.02(c) below, any amendment to the Terms of the Offer after the Offer has been Commenced must be approved by all Members; provided, however, that only the Manager need approve any extension of the expiration date of commencement the Offer which, in the opinion of legal counsel to the Company in connection with the Offer, (i) is required by the Exchange Act and the rules and regulations thereunder or by the Commission or (ii) is otherwise advisable under the circumstances.
(c) If a Competing Offer has been Commenced, then the Manager may, in its sole discretion, increase the purchase price of the Offer from time to time; provided, however, that the purchase price of the Offer may not be increased to an amount that is greater than 110% of the purchase price of the Competing Offer at the time of any such increase. If the purchase price of the Offer is to be increased pursuant to this Section 4.02(c), then, within two Business Days of the receipt by Fleetwood of notice of a Competing Offer, Fleetwood, on behalf of all Fleetwood Members, shall elect whether or not to fund the Fleetwood Members' pro rata share of the Offer Call amount to be specified in a properly issued Capital Call Notice. If Fleetwood shall elect not to so fund, the Company shall be required to Effect a Redemption with respect to the Icahn Group.
(d) If (i) a Competing Offer has been Commenced, (ii) Fleetwood (on behalf of all Fleetwood Members) proposes in writing to Cayuga (on behalf of all Cayuga Members) to increase the purchase price of the Offer to a price that is at least equal to, but not greater than 110% of, the purchase price of the Competing Offer, and (iii) Cayuga does not agree within two Business Days after Fleetwood's request to increase the purchase price of the Offer, Purchaser then the Company shall file with continue to make the Securities Offer on unchanged terms and Exchange Commission Fleetwood may elect within two Business Days following the expiration of the two Business Day period referred to in the foregoing clause (iii) to require the Company to Effect a Redemption in respect of the Icahn Group, in which case all members of the Icahn Group will continue to be subject to the provisions of Section 4.01. If Cayuga agrees to the increase in the purchase price of the Offer proposed by Fleetwood within such two Business day period, then the Manager shall take such action as is reasonably necessary to amend the Offer and effect such price increase.
(e) The Hermxx Xxxup, Inc. will be retained to act as depositary (the "SECDepositary")
(i) a Tender for each Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements theretosuch terms as the Manager in its sole discretion shall determine. In addition, the "Schedule 14D-1") Depositary will be reimbursed for its reasonable out-of-pocket expenses incurred in connection with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsOffer.
Appears in 2 contracts
Samples: Partnership Agreement (Cayuga Associates L P), Partnership Agreement (Devon Associates/Ny/)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 8.01 and none of the events set forth in Annex A hereto shall have occurred or be existingexisting (unless such event shall have been waived by Purchaser), Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), and Purchaser shall commence commence, the Offer at the Per Share Amount as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the condition (the "Minimum Condition") that at least the number of Shares that, when combined with the Shares already owned by Parent and its direct or indirect subsidiaries and any Shares purchased pursuant to the Stockholders Agreement, constitute a majority of the then outstanding ----------------- SharesShares on a fully diluted basis, other than including, without limitation, all Shares owned beneficially by issuable upon the conversion of any convertible securities or upon the exercise of record by Gambroany options, Parent, Purchaser warrants or any of their affiliatesrights, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to (ii) the satisfaction or waiver of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such conditioncondition (other than the Minimum Condition), to increase the price per Share payable in the OfferAmount, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that (notwithstanding Section 8.04) no -------- ------- change may be made which (A) decreases the price per Per Share payable in the Offer or which Amount, (B) reduces the maximum number of Shares to be purchased in the Offer or which Offer, (C) imposes conditions to the Offer in addition to those set forth in Annex A hereto, (D) amends or changes the terms and conditions of the Offer in any manner materially adverse to the holders of Shares (other than Parent and its subsidiaries) or (E) changes or waives the Minimum Condition. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the OfferOffer (including, without limitation, the Minimum Condition), Purchaser shall accept for payment and pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly soon as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) and disseminate to holders of Shares to the extent required by law a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC. Parent and Purchaser will provide the Company and its counsel with a copy of any written comments or telephonic notification of any verbal comments Parent or Purchaser may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof and will provide the Company and its counsel with a copy of any written responses and telephonic notification of any verbal response of Parent, Purchaser or their counsel. In the event that the Offer is terminated or withdrawn by Purchaser, Parent and Purchaser shall cause all tendered Shares to be returned to the registered holders of the Shares represented by the certificate or certificates surrendered to the Paying Agent (as defined herein).
Appears in 2 contracts
Samples: Merger Agreement (McFarland Energy Inc), Merger Agreement (McFarland Energy Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. Purchaser shall not, without the consent of a majority of the Independent Directors, accept for payment any Shares tendered pursuant to the Offer unless at least a majority of the then issued and outstanding Shares, other than Shares owned by Parent and Purchaser, shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "First Minimum Condition"). The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer (i) shall be subject to the condition (the "Second Minimum Condition") that at least the number of Shares that when added to the Shares already owned by Parent and Purchaser shall constitute not less than 90% (or such other amount which would allow the Merger to be effected without a majority meeting of the Company's stockholders in accordance with Section 253 of the Delaware Law) of the then issued and outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also (ii) shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such conditioncondition (except the First Minimum Condition), to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that (i) no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A heretohereto and (ii) in the event all conditions set forth in Annex A shall have been satisfied other than the Second Minimum Condition, Purchaser may extend the Offer for a period or periods aggregating not more than 20 business days after the later of (x) the initial expiration date of the Offer and (y) the date on which all other conditions set forth in Annex A shall have been satisfied, after which time Purchaser shall waive the Second Minimum Condition. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the OfferOffer (including, without limitation, the First Minimum Condition and the Second Minimum Condition), Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly soon as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions transactions contemplated hereby (as hereinafter definedthe "Transactions"). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given the opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC. Parent and Purchaser shall provide the Company and its counsel with a copy of any written comments or telephonic notification of any verbal comments Parent or Purchaser may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof and shall provide the Company and its counsel with a copy of any written responses and telephonic notification of any verbal responses of Parent, Purchaser or their counsel.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Novartis Inc), Agreement and Plan of Merger (Novartis Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 Article V hereof and none of the events or conditions set forth in Annex A I hereto (the “Tender Offer Conditions”) shall have occurred or be existingexisting and not have been waived by Purchaser, Purchaser shall commence (i) within the Offer meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”) and within the meaning of The Securities Regulation Code of the Philippines (including the rules and regulation promulgated thereunder, the “SRC”), as promptly as reasonably practicable after the date hereof, (but in any event no event later than five business days after the initial public announcement Final Launch Date (as defined below)), commence (such date on which the offer commences in the United States, the “Launch Date”) an offer to purchase (or, if required by applicable Law commence separate offers in the United States and the Philippines to purchase) all outstanding Common Shares and ADSs at the Offer Price, (ii) as promptly as reasonably practicable (on or prior to the Launch Date), file a Tender Offer Statement on Schedule TO and all other necessary documents with the United States Securities and Exchange Commission (the “SEC”) and a Form 19-1 with the Philippine Securities and Exchange Commission (the “PSEC”) and make all announcements, deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act and under Rule 19 of Purchaser's intention the SRC, in each case in connection with the Offer (together, such documents as may be amended and supplemented, the “Offer Documents”) and (iii) use reasonable efforts to commence consummate the Offer, subject to the terms and conditions thereof. Company shall cooperate and give all reasonable assistance to Purchaser to enable Purchaser to comply with the foregoing provisions, including promptly and accurately providing to Purchaser any and all information and documents reasonably requested by Purchaser for this purpose. The obligation of Purchaser to accept for payment and or pay for any Shares tendered pursuant to the Offer shall will be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject only to the satisfaction or waiver by Purchaser of the other conditions set forth in Annex A I hereto. Company agrees that no Shares held by Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the Offer. For the purpose of this Agreement, the “Final Launch Date” shall be the date that is twenty-five (25) business days following public announcement of this Agreement; provided; however, if at 11:59 pm New York City time on the twenty-fifth business day following public announcement of this Agreement, either the SEC or PSEC has not granted in writing exemptive relief from compliance with, and taken a “no action” position with respect to, (with respect to the SEC) the rules promulgated under the Exchange Act and (with respect to the PSEC) the rules and regulations promulgated under the PCC and SRC, in connection with the Offer, as described in Schedule 1.1(a) attached hereto (the “No Action Relief”), but Purchaser (i) has submitted to the SEC or PSEC a draft or final request for such relief and (ii) is using all reasonable efforts to pursue the No Action Relief, such time period shall automatically extend until the date that is five (5) business days after Purchaser has received the No Action Relief; provided further that if, on what would otherwise be the Final Launch Date, Purchaser is still preparing or finalizing the Offer Documents and/or making or finalizing preparations to commence the Offer and is using all reasonable efforts to do so, the Final Launch Date shall automatically extend for an additional ten (10) business days. The obligation of the Purchaser to commence the Offer as provided in this Section 1.1(a) is subject to Purchaser not being entitled to terminate this Agreement pursuant to Section 5.4(d). Following the date hereof, the parties hereto shall use their reasonable efforts to commence the Offer as promptly as reasonably practicable.
(b) Purchaser expressly reserves the right to amend or waive any such conditionof the conditions set forth in Annex I hereto (other than the Minimum Condition), to increase the price per Share payable in the Offer, Offer and to make any other changes in the terms and conditions of the Offer; provided, -------- however, provided that the Minimum Condition may not be waived except with without the prior ------- written consent of Company, Purchaser shall not decrease the Special Committee; and provided further that no -------- ------- Offer Price or change may be made which decreases the price per Share form of consideration payable in the Offer or which reduces Offer, decrease the maximum number of Shares sought to be purchased in the Offer or which imposes Offer, impose additional conditions to the Offer, amend the Minimum Condition (as defined in Annex I hereto) or amend any other term of the Offer in addition any manner adverse to those set forth in Annex A heretothe holders of Shares. The Per Share Amount shallOffer shall remain open at least until the date that is 20 business days after the commencement of the Offer (the “Expiration Date”), subject to applicable withholding unless Purchaser shall have extended the period of taxes, be net to time for which the seller Offer is open in cash, upon accordance with the terms of this Agreement, in which event the term “Expiration Date” shall mean the latest time and subject to date as the conditions Offer, as so extended, may expire. If, at any Expiration Date, any of the OfferTender Offer Conditions are not satisfied or waived by Purchaser, Purchaser may extend the Offer from time to time; provided, however, Purchaser may not extend the Offer beyond the 60th day following the Launch Date without Company’s prior written consent. Subject to the terms and conditions of the OfferOffer and this Agreement and the satisfaction of all the Tender Offer Conditions as of the Expiration Date, Purchaser shall pay, as promptly as practicable after expiration of the Offer, will accept for payment and pay for all Shares validly tendered and not withdrawn.
validly withdrawn pursuant to the Offer as soon as practicable but in any event no later than ten (b10) As business days after the Expiration Date (the date that Purchaser accepts for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer shall be referred to as the “Acceptance Date”), the date that Purchaser pays for such Shares, which shall in any event occur no later than ten (10) business days after the Acceptance Date, shall be referred to as the “Payment Date” and for the avoidance of doubt, the Payment Date for the Offer in respect of the ADSs will be as promptly as reasonably practicable practicable, subject to applicable Law, on the date Acceptance Date and references in this Agreement to Payment Date relating to ADSs will be considered to mean the relevant Acceptance Date). Without the prior written consent of commencement of the OfferCompany, Purchaser shall file not accept for payment or pay for any Shares in the Offer if, as a result, Purchaser would acquire less than the number of Shares necessary to satisfy the Minimum Condition (as defined in Annex I). Purchaser may provide a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Securities Exchange Act and Exchange Commission (Rule 19 under the "SEC")
(i) a Tender Offer Statement SRC immediately following the Acceptance Date on --- Schedule 14D-1 (together with all amendments and supplements thereto, substantially the "Schedule 14D-1") with respect to same terms as the Offer and keep such subsequent offer open for at least 20 business days after the commencement of such subsequent offering period (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined“Subsequent Offering”). The Schedule 14D-1 and the Schedule 13E-3 As used in this Agreement, a “business day” shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms mean any day of the related letter of ----------------- transmittal and year other than a Saturday, Sunday or any related summary advertisement (the Schedule 14D-1other day on which banks located in New York, the Schedule 13E-3New York USA or Makati City or Manila, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them Philippines are generally closed for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsbusiness.
Appears in 2 contracts
Samples: Acquisition Agreement (Ayala Corp), Acquisition Agreement (eTelecare Global Solutions, Inc.)
The Offer. (a) Provided that Subject to the provisions of this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existingAgreement, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after August 16, 1995, Sub shall, and Parent shall cause Sub to, commence, within the initial public announcement meaning of Purchaser's intention to commence Rule 14d-2 under the Exchange Act (as hereinafter defined), the Offer. The obligation of Purchaser Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment payment, and pay for Shares for, any shares of Common Stock tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex Exhibit A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of this Agreement. The initial expiration date of the Offer shall be September 15, 1995. Without the prior written consent of the Company, Sub shall not (i) waive the Minimum Condition (as defined in Exhibit A), (ii) reduce the number of shares of Common Stock subject to the Offer, Purchaser shall pay, as promptly as practicable after expiration (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, for (iv) extend the Offer if all Shares validly tendered and not withdrawn.
of the Offer conditions are satisfied or waived, (bv) As promptly as reasonably practicable on change the date form of commencement of consideration payable in the Offer, Purchaser shall file with or (vi) amend, add or waive any term or condition of the Securities and Exchange Commission Offer (including the "SEC")
conditions set forth on Exhibit A) in any manner that would adversely affect the Company or its stockholders. Notwithstanding the foregoing, Sub may, without the consent of the Company, extend the Offer (i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, if at the "Schedule 14D-1") with respect to then scheduled expiration date of the Offer any of the conditions to Sub's obligation to accept for payment and pay for shares of Common Stock shall not have been satisfied or waived, until the later of (x) any period during which the Offer may remain open pursuant to clauses (ii)-(v) below, and (y) the fifth business day after the date Sub reasonably believes to be the earliest date on which such conditions may be satisfied; (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements theretofor any period required by any rule, regulation, interpretation or position of the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions SEC (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain ) 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and its staff applicable to the extent required by applicable federal securities laws.Offer; (iii) if the condition in clause
Appears in 1 contract
Samples: Tender Offer Statement
The Offer. (ab) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none Neither the Purchaser, BUSA nor the Sub will, without the prior written consent of the events set forth Board of Directors of the Company, decrease the amount or change the form of the consideration payable in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation , decrease the number of Purchaser to accept for payment and pay for Shares tendered shares of Common Stock sought pursuant to the Offer shall be subject Offer, change the conditions to the Offer, impose additional conditions or terms to the Offer, amend or waive the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been there be validly tendered and not properly withdrawn prior to the expiration of the Offer and also shall be subject a number of shares of Common Stock which when added to the satisfaction number of shares of Common Stock owned by the Purchaser and its affiliates constitutes at least a two-thirds of the other then outstanding shares of Common Stock on a fully diluted basis, or amend any term of the Offer in any manner adverse to holders of shares of Common Stock. Assuming the prior satisfaction or waiver of the conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, the Purchaser covenants and agrees to make any other changes accept for payment and pay for, in accordance with the terms of the Offer, shares of Common Stock tendered pursuant to the Offer as soon as permitted to do so under applicable law, provided that the Purchaser, BUSA, and the Sub shall have the right, upon consultation with the Company, to extend the Offer (if without such extension the Purchaser would be unable to consummate the Offer) to a date not later than the 30th business day following the commencement of the Offer or for such longer period as may be required by law.
(c) Notwithstanding anything to the contrary in this Agreement, the Purchaser, BUSA, and the Sub further agree that, subject to the terms and conditions of this Agreement, in the event that the conditions to the Offer set forth in paragraphs (a) or (b) of Exhibit A hereto shall occur or exist (and shall not have been waived), the Sub shall, at the Company's request, extend the Offer to a date not later than the 40th business day following the commencement of the Offer; provided, -------- however, that if the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount paragraph (d) shall not have been satisfied solely due to the Company's breach of the condition described therein, the Purchaser, BUSA, and the Sub shall, subject if reasonably requested by the Company, extend the Offer for five business days to applicable withholding of taxes, be net enable the Company to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawncure such breach.
(bd) As promptly soon as reasonably practicable on or before the date of commencement of the Offer, Purchaser but not later than three (3) business days after the Execution of this Agreement, the Purchaser, BUSA, and the Sub shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, which will contain the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms form of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all any supplements and or amendments thereto, being referred to herein collectively as the "Offer Documents"). GambroThe Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, Parenton the date filed with the SEC and on the date first published, Purchaser sent or given to the Company's common stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Purchaser, BUSA, or the Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. The Purchaser, BUSA, the Sub and the --------------- Company agree each agrees promptly to correct promptly any information provided by any of them it for use in the Offer Documents which if and to the extent that it shall have become false or misleadingmisleading in any material respect and the Purchaser, BUSA, and Gambro, Parent and Purchaser the Sub each further agree agrees to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's common stockholders, in each case as and to the extent required by applicable federal securities laws. The Purchaser, BUSA, and the Sub agree to provide the Company and its counsel in writing with any comments the Purchaser, BUSA, the 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.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- agreement shall not have been terminated in accordance with Section 7.01 section 8 and none that no circumstances exist that would result in a failure to satisfy any of the events conditions set forth in Annex A hereto shall have occurred or be existingsection 1.1(c)(i) through (vi), Purchaser SUB shall commence the Offer as promptly soon as reasonably practicable after the date hereofpracticable, but in no event later than five the fifth business days day after the date of initial public announcement of Purchaser's intention to commence this agreement and the Offer. The obligation of Purchaser to SUB shall accept for payment Shares that have been validly tendered, and pay for Shares tendered not withdrawn, pursuant to the Offer shall be subject to at the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the earliest time following expiration of the Offer and also shall be subject that all conditions to the satisfaction of the other conditions set forth in Annex A heretoOffer shall have been satisfied or waived by SUB. Purchaser expressly reserves SUB shall have the right to waive any such condition, to increase the price per Per Share Amount payable in the Offer, and Offer or to make any other changes in the terms and conditions of the Offer; providedprovided that, -------- howeverunless previously approved by HK in writing, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which that (x) decreases the price per Per Share Amount payable in the Offer, (y) changes the form of consideration to be paid in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which (z) imposes conditions to the Offer in addition to those set forth in Annex A heretosection 1.1(c) or broadens the scope of those conditions; and further provided that (I) SUB shall have the right in its sole discretion to extend the Offer for up to a maximum of five additional business days if after 20 business days there shall not have been tendered sufficient Shares to consummate a Short Form Merger as described in section 2.9(c), (II) SUB may extend the Offer for such additional number of trading days as may be reasonably necessary to allow Shares tendered under "signature guarantees" to be delivered, and (III) if Parent or SUB determines, upon the advice of outside legal counsel, that any supplement or amendment to the Offer Documents (as defined in section 1.1(b)) is required to be circulated to the offerees, then Parent or SUB shall have the right to extend the offer for such additional number of days as may be necessary under applicable law as determined by Parent and SUB, on the advice of counsel. The Per Share Amount shall, subject to applicable withholding of taxes, shall be paid net to the seller in cash, less any required withholding of taxes, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly soon as reasonably practicable on the date of commencement of the Offer, Purchaser SUB shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement tender offer statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the 1 2 Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, which will contain the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms form of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all any supplements and or amendments thereto, being referred to herein collectively as collectively, the "Offer Documents"). Gambro, Parent, Purchaser The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and the --------------- Company agree to correct promptly any securities laws of the state of Delaware. The information provided and to be provided by any of them HK, Parent and SUB for use in the Offer Documents shall not, on the date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a material fact 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. Parent, SUB and the Company each shall have promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall become false or misleading, misleading in any material respect and Gambro, Parent and Purchaser further agree to SUB shall take all necessary steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawslaws and the securities laws of the state of Delaware.
(c) Any other provision of this agreement or the Offer notwithstanding, SUB shall not be required to accept for payment or pay for, and may delay the acceptance for payment of, or the payment for, any Shares, and may terminate the Offer and not accept for payment or pay for any Shares, unless all of the following conditions shall have been satisfied: (i) no statute, rule, regulation, executive order, decree, court order, ruling or preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced by any local, state or federal court or governmental authority in the United States that prohibits, restrains, enjoins or materially restricts the Offer or the consummation of the Offer or the Merger; (ii) any waiting period applicable to the consummation of the Offer or the Merger under the HSR Act (as defined in section 5.4) shall have terminated or expired; (iii) there shall not have occurred or been threatened any event or series of events or any condition or circumstance arisen that, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect (as defined in section 9.8) on HK, determined by reference to the business, assets, results of operations or financial condition of HK at July 31, 1995; (iv) the representations and warranties of HK contained in this agreement shall be true and correct in all material respects on and as of the date of consummation of the Offer as though made on and as of that date, except (i) for changes occurring after the date of this agreement that are specifically permitted by this agreement, including changes resulting from conduct permitted under section 5.1, and (ii) that those representations and warranties that address matters only as of a particular date shall remain true and correct as of that date; and Parent and SUB shall have been furnished with a certificate of HK to the effect of the matters referred to above (and only excepting the matters referred to in items (i) and (ii) above) executed by its Chairman in form and substance satisfactory to Parent and SUB; (v) HK shall have performed and complied in all material respects with all obligations, covenants, agreements and conditions required by this agreement to be performed or complied with by it prior to or on the date of consummation of the Offer, and Parent and SUB shall have been furnished with a certificate of HK to that effect executed by its Chairman in form and substance satisfactory to Parent and SUB; (vi) Parent and/or SUB shall have obtained financing pursuant to the Financing Commitment Letter referred to in section 4.4 or other financing arrangements on terms not materially more adverse to the borrower than the terms of the Financing Commitment Letter (the "Financing Condition"); and (vii) at least 90% of the outstanding Shares shall have been tendered in the Offer (the "90% Minimum Condition"). The conditions set forth above are for the sole benefit of SUB and Parent only and may be asserted by SUB and Parent regardless of the circumstances giving rise to any such condition (including the termination of this agreement by SUB or Parent) or may be waived by SUB or Parent, in whole or in part at any time and 2 3 from time to time, in their sole discretion. The failure by SUB or Parent at any time to exercise any of the rights set forth in this provision 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. Any determination by SUB or Parent with respect to any of the conditions referred to (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties.
Appears in 1 contract
Samples: Merger Agreement (Huffman Koos Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of subject to the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date terms hereof, but in no event later than five within ten (10) business days after the initial public announcement of Purchaser's intention to the execution hereof by the parties, Purchaser shall (and Parent shall cause Purchaser to) commence (within the Offermeaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), the Offer for all of the Shares, at the Offer Price. The obligation of Purchaser to accept for payment and to pay for any Shares tendered pursuant (and the obligation of Parent to the Offer cause Purchaser to accept for payment and to pay for any Shares tendered) shall be subject only to (i) the condition (the "Minimum Condition") that at least a majority of Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested Company Stock Options (as defined in Section 3.4(a) and unvested Company Stock Options that vest (or upon consummation of the then outstanding ----------------- SharesOffer will vest) prior to the Final Date (as defined in Section 9.1), other than but excluding any Shares owned beneficially held by or of record by Gambro, Parent, Purchaser the Company or any of their affiliates, shall have been its subsidiaries) be validly tendered and not withdrawn prior to the expiration of the Offer or otherwise already be beneficially owned by Parent or Purchaser (the "MINIMUM CONDITION"), and also shall be subject to (ii) the satisfaction or the waiver by Purchaser of the other conditions set forth in Annex A hereto. A. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and Offer Price or to make any other changes in the terms and conditions of the Offer; provided, -------- however, that unless previously approved by the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that Company in writing, no -------- ------- change may be made which that (i) decreases the price per Share payable Offer Price, (ii) changes the form of consideration to be paid in the Offer or which Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or which Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A, (v) amends the conditions set forth in Annex A heretoto broaden the scope of such conditions, (vi) amends any other term of the Offer in a manner adverse to the holders of the Shares, (vii) extends the Offer except as provided in Section 2.1(b), or (viii) amends or waives the Minimum Condition. It is agreed that the conditions set forth in Annex A are for the sole benefit of Parent and Purchaser and may be waived by Parent and Purchaser, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, as to which prior written approval of the Company is required. The Per Share Amount shall, subject failure by Parent and Purchaser at any time to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in the Offer. .
(b) Subject to the terms and conditions hereof, the Offer shall expire at midnight, New York City time, on the date that is twenty-five (25) business days after the date the Offer is commenced; provided, however, that without the consent of the Company's Board of Directors (the "COMPANY BOARD"), Purchaser may (i) from time to time extend the Offer, Purchaser shall pay, as promptly as practicable after if at the scheduled expiration date of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement Offer any of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect conditions to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall not have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.been
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 9.01 and that none of the events set forth in Annex A hereto shall have occurred or and be existingcontinuing, Purchaser shall commence the Offer as promptly as reasonably practicable (and in any event within ten Business Days) after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "“Minimum Condition"”) that at least the number of Shares that shall constitute a majority of the then outstanding ----------------- SharesShares on an as-if-converted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights (other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, the 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 Annex A hereto. Purchaser expressly reserves the right (i) to waive any such condition, (ii) to increase the price per Share payable in the Offer, Offer and (iii) to make any other changes in the terms and conditions of the Offer; provided, -------- however, that in the Minimum Condition may not be waived except with the prior ------- written consent case of the Special Committee; and provided further that clause (iii) no -------- ------- other change may be made which (w) decreases the price per Per Share Amount payable in the Offer or which Offer, (x) reduces the maximum number of Shares to be purchased in the Offer or which Offer, (y) imposes conditions to the Offer in addition to those set forth in Annex A hereto or (z) is otherwise disadvantageous to the stockholders of the Company. Subject to the prior satisfaction or waiver by Parent or Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, Purchaser shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered pursuant to the Offer as soon as practicable after Purchaser is legally permitted to do so under applicable law. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be 20 Business Days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment Shares, shall not be satisfied or waived, or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the “SEC”), or the staff thereof, applicable to the Offer. In addition, if, on the initial scheduled expiration date and each subsequent scheduled expiration date of the Offer, the sole condition or conditions remaining unsatisfied are the failure of the waiting period under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), to have expired or been terminated and/or, if there is a Dispute that is pending or continuing, the Dispute Resolution Period shall not have expired , then Purchaser shall extend the Offer from time to time until the fifth Business Day after the later to occur of (i) expiration or termination of the applicable waiting period under the HSR Act or (ii) the expiration of the Dispute Resolution Period. Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company except in the event that Purchaser terminates this Agreement pursuant to Section 9.01. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject Purchaser shall pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall pay, as promptly as practicable after expiration be effected in compliance with Rule 14e-l(c) under the Exchange Act. If the payment equal to the Per Share Amount in cash (the “Merger Consideration”) is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the OfferCompany, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all Shares validly tendered transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such taxes either have been paid or are not withdrawnapplicable.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments and supplements thereto, the "“Schedule 14D-1"TO”) with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined)Offer. The Schedule 14D-1 and the Schedule 13E-3 TO shall contain 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 14D-1, the Schedule 13E-3TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which that shall have become false or misleadingmisleading and to correct any material omissions, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents before they are filed with the SEC, and Parent and Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Purchaser agree to provide the Company and its counsel with any comments, whether written or oral, that Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Purchaser’s, as the case may be, receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, Parent and Purchaser shall promptly return, and shall cause any depository or paying agent, including the Paying Agent (as hereinafter defined), acting on behalf of Parent and Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (McKesson Corp)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 7.1 and none of the events set forth in Annex A hereto (other than the events set forth in clause (g) thereof) shall have occurred or be existingcontinuing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, (but in no event later than five business days after from the initial public announcement of Purchaser's intention the execution hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) an offer (the "OFFER") to commence purchase for cash all of the issued and outstanding shares of Common Stock, par value $.01 per share (each a "SHARE" and, collectively, the "SHARES" or the "COMPANY COMMON STOCK"), of the Company, at a price of $55.50 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, the "OFFER PRICE"). The obligation Merger Sub shall, on the terms and subject only to the prior satisfaction or waiver of Purchaser to the conditions of the Offer set forth in Annex A hereto (except that the Minimum Condition (as defined herein) may not be waived by Parent or Merger Sub without the consent of the Company), accept for payment and pay for Shares tendered pursuant as soon as it is legally permitted to do so under applicable law. The obligations of Merger Sub to accept for payment and to pay for any and all Shares validly tendered on or before the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn before the condition (expiration of the "Minimum Condition") Offer, that number of Shares which, together with any Shares beneficially owned by Parent or Merger Sub, represent at least a majority of the then Shares outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered on a fully diluted basis (the "MINIMUM CONDITION") and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of (ii) the other conditions set forth in Annex A heretohereto (the "ADDITIONAL CONDITIONS" and, together with the Minimum Condition, the "OFFER CONDITIONS"). Purchaser expressly reserves The Offer shall be made by means of an offer to purchase (the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in "OFFER TO PURCHASE") containing the terms set forth in this Agreement and conditions of the Offer; provided, -------- however, that Offer Conditions. Merger Sub shall not amend or waive the Minimum Condition may and shall not be waived decrease the Offer Price or decrease the number of Shares sought, or amend any other term or condition of the Offer in any manner adverse to the holders of the Shares or, except with as provided in the next two sentences, extend the expiration date of the Offer without the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases Company. Notwithstanding the price per Share payable in foregoing, Merger Sub may, without the consent of the Company, (i) extend the Offer on one or which reduces more occasions for an aggregate period of not more than 20 days, if at the maximum number scheduled or extended expiration date of Shares to the Offer, the Minimum Condition shall not be purchased in satisfied, (ii) extend the Offer from time to time until the earlier to occur of (x) the satisfaction or which imposes conditions to waiver of all Offer Conditions or (y) August 31, 1998; PROVIDED, HOWEVER, that notwithstanding the foregoing, if all Offer in addition to those set forth Conditions other than the HSR Condition (as defined in Annex A hereto. The Per Share Amount shall) have been satisfied or waived, subject to applicable withholding Merger Sub may, if such HSR Condition is reasonably capable of taxesbeing satisfied, be net to extend the seller in cash, upon Offer without the terms and subject to the conditions consent of the Offer. Subject to Company until October 31, 1998 (either such date, as applicable, being the terms and conditions "EXTENSION DATE"), if at the scheduled or extended expiration date of the Offer, Purchaser shall pay, as promptly as practicable after expiration Offer any of the OfferOffer Conditions (other than the Minimum Condition) which are reasonably capable of being satisfied shall not be satisfied or waived, (iii) extend the Offer for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement any period required by any rule, regulation, interpretation or position of the Offer, Purchaser shall file with the United States Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, or the "Schedule 14D-1") with respect staff thereof applicable to the Offer and (iv) extend the Offer on one or more occasions for an aggregate period of not more than 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares on a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 fully diluted basis; PROVIDED, HOWEVER, that if the Offer is extended pursuant to this clause (together with all amendments and supplements theretoiv) hereof, the "Schedule 13E-3") with respect conditions to the Offer set forth in clauses (b), (f) or (h) of Annex A hereto shall be deemed satisfied at all times thereafter. Notwithstanding the foregoing, if requested by the Company, Merger Sub shall, and -------------- Parent agrees to cause Merger Sub to, extend the other Transactions Offer from time to time until the earlier to occur of (as hereinafter defined). The Schedule 14D-1 x) the satisfaction or waiver of all Offer Conditions or (y) the Extension Date if, and to the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (extent that, at the "Offer to Purchase") and forms initial expiration date of the related letter Offer, or any extension thereof, all Offer Conditions have not been satisfied or waived and all such conditions are reasonably capable of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3being satisfied. In addition, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser Price may be increased and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to may 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 extended to the extent required by applicable federal securities lawslaw in connection with such increase, in each case without the consent of the Company.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto nothing shall have occurred or be existingthat would give rise to a right to terminate this Agreement pursuant to Article 8, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereofof this Agreement, but in no event later than five business days after fifteen (15) Business Days following the initial public announcement date of Purchaser's intention to this Agreement, Buyer shall (and Parent shall cause Buyer to) commence (within the meaning of Rule 14d-2 promulgated under the 0000 Xxx) the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to date on which Buyer commences the Offer shall be subject is referred to as the condition “Offer Commencement Date”.
(b) In accordance with the "Minimum Condition") that at least a majority terms and conditions of the then outstanding ----------------- Sharesthis Agreement, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction or waiver by Buyer (to the extent such waiver is permitted by Applicable Law) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves I (collectively, the right to waive any such condition“Offer Conditions”), to increase the price per Share payable in the OfferBuyer shall (and Parent shall cause Buyer to), and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer at or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration following the Expiration Time (but in any event, within three (3) Business Days thereof), accept for payment (the time of acceptance for payment, the Offer“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 all Shares validly tendered and not withdrawnproperly withdrawn pursuant to the Offer (the “Closing” and, the date on which the Closing occurs, the “Closing Date”).
(bc) As promptly Buyer expressly reserves the right at any time to, at its sole discretion, 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, without the prior written consent of the Company, Buyer shall not:
(i) waive or change the Minimum Condition;
(ii) decrease the Offer Consideration;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time except as reasonably practicable otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner adverse to the holders of Shares.
(d) Unless extended as provided in this Agreement, the Offer shall expire at 12:00 midnight (New York City time) (i.e., one minute after 11:59 p.m. (New York City time)) on the date that is the later of commencement (i) twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the 0000 Xxx) after the 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 is not satisfied or waived by Buyer at the Initial Expiration Time or at any then-scheduled Expiration Time, Buyer shall (and Parent shall cause Buyer to) extend the Offer (the length of such extension period to be determined by Parent or Buyer, 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 beyond the End Date, (ii) no such individual extension of the Offer shall be for a period of more than ten (10) Business Days, and (iii) Buyer shall not be required to extend the Offer at any time that Parent or Buyer is permitted to terminate this Agreement. Buyer shall (A) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC, 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, Purchaser 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; 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 up to ten (10) Business Days from the day the Marketing Period will otherwise end. Following expiration of the Offer, Buyer 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 in any event within twenty-four (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 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.
(e) As soon as practicable on the Offer Commencement Date, Parent and Buyer shall (i) file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the "“Schedule 14D-1"TO”) with respect to that shall include the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements theretosummary term sheet required thereby and, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3exhibits, the Offer to Purchase and such other documentsa form of letter of transmittal and summary advertisement (collectively, together with all any amendments or supplements and amendments thereto, being referred to herein collectively as the "“Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to holders of Shares to the extent required by applicable United States federal securities laws and any other Applicable Law. Gambro, The Company shall promptly furnish to Parent and Buyer all information concerning the Company required by the 1934 Act to be set forth in the Offer Documents. Each of Parent, Purchaser Buyer and the --------------- Company agree agrees promptly to correct promptly any information provided by any of them it for use in the Schedule TO and the Offer Documents which if and to the extent that such information shall have become (or shall have become known to be) false or misleading, and Gambro, misleading in any material respect. Parent and Purchaser further agree to take all steps necessary Buyer shall use their reasonable best efforts to cause the Schedule 14D-1 and the Schedule 13E-3 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 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 on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Buyer shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Buyer shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, 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 receipt of those comments or other communications and (B) a reasonable opportunity to participate in the response of Parent and Buyer 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 Buyer or their counsel in any discussions or meetings with the SEC or other Governmental Authorities to the extent such participation is permitted by the SEC or other Governmental Authorities.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- nothing shall not have been terminated occurred that would result in accordance with Section 7.01 and none a failure to satisfy any of the events conditions set forth in Annex A hereto shall have occurred or be existingANNEX I hereto, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, amend the Initial Offer to offer to purchase any and all of the outstanding Shares at a price of $8.50 per Share, net to the seller in no event later than five business days after cash (the initial public announcement of Purchaser's intention to commence the Offer"OFFER"). The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (that there shall be validly tendered in accordance with the "Minimum Condition") that terms of the Offer, prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then beneficially owned by Parent, Merger Subsidiary and Saint-Gobain, represents at least a majority of the then total number of outstanding ----------------- Shares, other than Shares owned beneficially by or on a fully diluted basis (including the exercise of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered all outstanding options) (the "MINIMUM CONDITION") and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A ANNEX I hereto. Purchaser Merger Subsidiary expressly reserves the right to waive any such condition, of the conditions to increase the price per Share payable in the Offer, Offer and to make any other changes change in the terms and or conditions of the Offer; provided, -------- howeverprovided that, that the Minimum Condition no change or waiver may not be waived except with made that, without the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may Company, waives the Minimum Condition, changes the form of consideration to be made which paid, decreases the price per Share payable or the number of Shares sought in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallANNEX I. Notwithstanding the foregoing, subject to applicable withholding of taxes, be net to without the seller in cash, upon the terms and subject to the conditions consent of the Offer. Subject to the terms and conditions of the OfferCompany, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.Merger Subsidiary
Appears in 1 contract
The Offer. (1) The Offeror shall promptly publicly announce its intention to make an offer and, subject to the terms and conditions set forth below, the Offeror shall make an offer to purchase all of the outstanding Units, including Units that may become outstanding upon the conversion, exchange or exercise of securities of the Fund or its subsidiaries (the “Offer”). The term “Offer” shall include any further amendments to, or extensions of, such Offer, made in accordance with the terms of this Agreement, including increasing the consideration, removing or waiving any condition or extending the date by which Units may be deposited.
(2) The consideration offered per Unit under the Offer shall consist of, at the election of each Unitholder: (a) Provided $2.12 in cash per Unit, subject to a maximum cash amount of $21,910,796 (the “Cash Offer”); or (b) 0.003 of a Convertible Debenture per Unit; or (c) 1.1 common shares of the Offeror for each Unit, and the Offer shall be otherwise subject to the terms and conditions set out herein in Schedule “A”.
(3) The Offeror shall mail the Offer and accompanying take-over bid circular (such circular, together with the Offer, being referred to herein as the “Bid Circular”) in accordance with Applicable Laws to each registered Unitholder and to each other person required by Applicable Laws as soon as reasonably practicable and not later than the earlier of (i) the latest mailing time prescribed under Applicable Laws, and (ii) 11:59 p.m. (Toronto time) on November 2, 2009 (such time on such date being referred to herein as the “Latest Mailing Time”); provided, however, that if the mailing of the Offer is delayed by reason of (A) an injunction or order made by a court or regulatory authority of competent jurisdiction, (B) the failure of the Fund to provide the Offeror with the lists of securityholders in accordance with Section 2.2(3), or (C) the failure of the Fund to provide the Offeror such other information as the Offeror reasonably requests on a timely basis for the completion of the Bid Circular, then, provided that such injunction or order is being contested or appealed or the Fund is making efforts to obtain such lists or the Fund is making efforts to provide such information, as applicable, the Latest Mailing Time shall be extended for a period ending on the earlier of the date which is 60 days from the date of this Agreement --------- and the fifth business day following the date on which such injunction or order ceases to be in effect or such lists are obtained, as applicable.
(4) The Offeror shall permit the Fund to review and comment on drafts of the Bid Circular in the course of its preparation and prior to its mailing, recognizing that whether or not such comments are accepted will be determined by the Offeror, acting reasonably.
(5) The Offer will be made in accordance with Applicable Laws and shall be open for acceptance until the date which is 35 days from the mailing of the Offer (the “Initial Expiry Time”) or such longer minimum period as may be prescribed under Applicable Laws, subject to the right of the Offeror to extend from time to time the period during which Units may be deposited under the Offer. The Offeror shall use all reasonable efforts to consummate the Offer, subject to the terms and conditions hereof and thereof.
(6) It is understood and agreed that the Offeror may, in its sole discretion, modify or waive any term or condition of the Offer; provided that the Offeror shall not, without the prior written consent of the Fund, waive the Minimum Tender Condition, impose additional conditions to the Offer, decrease the consideration per Unit, decrease the number of Units in respect of which the Offer is made or change the form of consideration payable under the Offer (other than to increase the total consideration per Unit and/or add additional consideration) or otherwise vary the Offer or any terms or conditions thereof (which for greater certainty does not include a waiver of a condition) in a manner which is adverse to Unitholders.
(7) The obligation of the Offeror to make the Offer and mail the Bid Circular is conditional on the prior satisfaction of the following conditions, all of which conditions are included for the sole benefit of the Offeror and any or all of which may be waived by the Offeror in whole or in part in its sole discretion (other than the condition set out in subparagraph (f) below, which may be waived only with the consent of the Fund) without prejudice to any other right it may have under this Agreement:
(a) the obligations of the Offeror hereunder shall not have been terminated in accordance with pursuant to Section 7.01 4.1;
(b) a Lock-up Agreement shall have been duly executed and none delivered by each Locked-up Unitholder on the date of this Agreement;
(c) no circumstance, fact, change, event or occurrence, unless caused solely by the events set forth in Annex A hereto Offeror or any of its affiliates, shall have occurred or come into existence that would render it impossible for one or more of the conditions set out on Schedule “A” hereto to be existingsatisfied;
(d) the Board shall have unanimously recommended that Unitholders accept the Cash Offer and shall not have withdrawn such recommendation or changed, Purchaser shall commence modified or qualified such recommendation in a manner adverse to the Offeror or taken any action or made any other public statement in connection with the Offer as promptly as reasonably practicable after inconsistent with such recommendation;
(e) the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment employment agreements with Xxxx Xxxxxxx and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, Xxxxxx Xxxxxx shall have been validly tendered amended to provide that (i) Xx. Xxxxxxx and Xx. Xxxxxx each agree not withdrawn prior to resign within 6 months following the expiration completion of the Offer and also shall if either of such persons does resign within such 6 month period, such person will not be subject entitled to receive any payments pursuant to section 5.5 of their respective employment agreements (a “Change of Control Payment”) as a result of such resignation, and (ii) if Xx. Xxxxxxx or Xx. Xxxxxx resign in the satisfaction period between 6 months and 12 months following the completion of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and he shall be entitled to make any a Change of Control Payment; and
(f) no cease trade order, injunction or other changes in prohibition under Applicable Laws shall exist against the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in Offeror making the Offer or which reduces the maximum number of Shares to be purchased in taking-up or paying for Units deposited under the Offer or which imposes completing a Compulsory Acquisition or Subsequent Acquisition Transaction.
(8) The Offeror agrees that, provided all of the conditions to the Offer set out in addition to those set forth Schedule “A” hereto shall have been satisfied, in Annex A hereto. The Per Share Amount shallall material respects, subject to applicable withholding of taxesor waived, be net to the seller in cash, upon the terms Offeror shall take-up and subject to the conditions pay for all of the Offer. Subject to Units tendered under the terms and conditions of the Offer, Purchaser shall pay, Offer as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly soon as reasonably practicable on possible and in any event not later than three business days following the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect time at which it becomes entitled to take-up such Units under the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect pursuant to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsApplicable Laws.
Appears in 1 contract
The Offer. (a) Provided Barrick shall promptly publicly announce its intention to amend the Original Offer, subject to the terms and conditions set forth below, to increase the consideration payable thereunder to, at the election of a Shareholder, $22.50 in cash or 0.8269 of a Barrick Common Share plus $0.05 in cash, in each case subject to pro ration as described in the Original Offer, provided that the maximum cash consideration will be $1,343,618,621 and the maximum share consideration will be 333,180,480 Barrick Common Shares (in each case calculated on a fully diluted basis). Barrick will continue to offer the "Rollover Option", as defined and described in the Original Offer. The conditions of the Original Offer will be replaced by the conditions set out in Schedule A. The Notice of Variation shall also contain an amendment to Section 13(e) of the Offer portion of the Circular to replace the phrase "in its sole discretion" with the phrase "in its reasonable discretion". Barrick will not be required to make the Offer in any jurisdiction where it would be illegal to do so.
(b) Barrick shall mail the Notice of Variation in accordance with the Securities Act (Ontario) and regulations thereunder and all other applicable securities laws, including the applicable securities laws of the United States, (collectively, "Applicable Securities Laws") to each registered holder of Shares as soon as reasonably practicable and, in any event, not later than 11:59 p.m. (Toronto time) on January 5, 2006 (such time on such date being referred to herein as the "Latest Mailing Time"); provided, however, that if the mailing of the Notice of Variation is delayed by reason of Placer Dome not having provided to Barrick the Directors' Circular referred to in Section 2.1(h)(vi) as well as any information pertaining to Placer Dome that is necessary for the completion of the Notice of Variation by Barrick, or not having provided Barrick with such other assistance in the preparation of the Notice of Variation as may be reasonably requested by Barrick in order that the Notice of Variation comply in all material respects with Applicable Securities Laws, then the Latest Mailing Time shall be extended to 11:59 p.m. on the fifth business day following the date on which Placer Dome supplies such necessary documents, information or other assistance.
(c) Prior to the printing of the Notice of Variation, Barrick shall provide Placer Dome and its counsel with a reasonable opportunity to review and comment on it, recognizing that whether or not such comments are appropriate will be determined by Barrick, acting reasonably.
(d) Barrick agrees that, provided all of the conditions to the Offer set out in Schedule A hereto shall have been satisfied or waived, Barrick shall take up and pay for all of the Shares tendered under the Offer promptly and in any event no later than two business days following the time at which it becomes entitled to take up such Shares under the Offer pursuant to applicable Laws.
(e) The Offer shall be made in accordance with Applicable Securities Laws and shall expire not earlier than midnight (Toronto time) on January 19, 2006 and not later than the 20th day following the Latest Mailing Time, subject to the right of Barrick to extend from time to time the period during which Shares may be deposited under the Offer (such time, as it may be extended, is referred to herein as the "Expiry Time"). Barrick shall use all reasonable efforts to consummate the Offer, subject to the terms and conditions hereof and thereof.
(f) It is understood and agreed that Barrick may, in its sole discretion, modify or waive any term or condition of the Offer; provided that Barrick shall not, without the prior consent of Placer Dome, increase or decrease the Minimum Tender Condition, impose additional conditions to the Offer, decrease the consideration per Share, decrease the maximum cash consideration or maximum share consideration, decrease the number of Shares in respect of which the Offer is made, change the form of consideration payable under the Offer (other than to increase the total consideration per Share and/or add additional consideration) or otherwise vary the Offer or any terms or conditions thereof (which for greater certainty, subject to Section 2.1(g), does not include a waiver of a condition) in a manner which is adverse to the Shareholders.
(g) Barrick may waive the Minimum Tender Condition only if: (i) there shall have been validly deposited pursuant to the Offer and not withdrawn at the Expiry Time that number of Shares which constitutes at least 60% of the Shares outstanding calculated on a fully diluted basis, or (ii) Barrick obtains such relief from the United States Securities and Exchange Commission as may be necessary to allow Barrick to take up Shares on more than one date and there shall have been validly deposited pursuant to the Offer and not withdrawn at an expiry date of the Offer that number of Shares which constitutes at least 50% of the Shares outstanding calculated on a fully diluted basis. In the circumstances described in clause (ii), subject to Applicable Securities Laws, Barrick will use its commercially reasonable efforts to extend the time for deposits to the Offer after any such take-up to permit Shareholders holding, in the aggregate, 66⅔% of the Shares outstanding calculated on a fully diluted basis to accept the Offer.
(h) The obligation of Barrick to amend the Original Offer is conditional on the prior satisfaction of the following conditions, all of which conditions are included for the sole benefit of Barrick and any or all of which may be waived by Barrick in whole or in part in its sole discretion (other than the condition set out in Section 2.1(h)(iv) below, which must be waived if Barrick has failed to use its reasonable best efforts to obtain such assurances, and the condition set out in Section 2.1(h)(ix) below, which may be waived only with the consent of Placer Dome) without prejudice to any other right it may have under this Agreement --------- and which conditions shall be deemed to have been waived by the making of the amended Offer:
(i) the obligations of Barrick hereunder shall not have been terminated pursuant to Section 7.1;
(ii) the Barrick Common Shares to be issued to Shareholders shall have been conditionally approved for listing on the TSX and Barrick shall not have been advised that such Barrick Common Shares would not be approved for listing, subject to notice of issuance, by the NYSE;
(iii) no change, effect, event, circumstance, occurrence or state of facts (other than a change, effect, event, circumstance, occurrence or state of facts caused by Barrick, a Barrick Subsidiary or any Person acting jointly or in accordance concert with Section 7.01 and none of the events set forth in Annex A hereto Barrick) shall have occurred that would render it impossible for one or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority more of the then outstanding ----------------- Sharesconditions set out on Schedule A hereto to be satisfied;
(iv) assurances satisfactory to Barrick, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliatesacting reasonably, shall have been validly tendered received by Barrick that all waivers, rulings or orders necessary for Barrick to amend the Original Offer and not withdrawn prior to mail to the expiration Shareholders the Notice of Variation have been or will be obtained from all applicable securities commissions or other regulatory authorities;
(v) the Placer Dome Board of Directors shall have unanimously recommended that Shareholders accept the Offer and also shall be subject not have withdrawn such recommendation or changed, modified or qualified such recommendation in a manner that has substantially the same effect or taken any other action or made any other public statement in connection with the Offer inconsistent with such recommendation;
(vi) the Placer Dome Board of Directors shall have prepared and approved in final form, printed for distribution to Shareholders and delivered to Barrick for mailing with the satisfaction Notice of Variation an amended directors' circular (the "Directors' Circular") unanimously recommending that Shareholders accept the Offer;
(vii) Placer Dome shall have complied in all respects with its covenants in Section 6.2 and in all material respects with its other conditions covenants in this Agreement;
(viii) all representations and warranties of Placer Dome set forth in Annex A hereto. Purchaser expressly reserves this Agreement shall be true and correct in all material respects at the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions time of the making of the amended Offer; providedand
(ix) no cease trade order, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in injunction or other prohibition at Law shall exist against Barrick making the Offer or which reduces the maximum number of taking up or paying for Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of deposited under the Offer. Subject Prior to printing the terms Directors' Circular, Placer Dome shall provide Barrick with a reasonable opportunity to review and conditions comment on it, recognizing that whether or not such comments are appropriate will be determined by Placer Dome, acting reasonably. The Directors' Circular shall include a copy of the Offerwritten fairness opinion of each of CIBC World Markets Inc., Purchaser shall payXxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being Sachs & Co. referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsbelow.
Appears in 1 contract
The Offer. (1) Subject to the conditions set forth in Schedule B-1, Parent agrees to cause the Offeror to make the Offer.
(2) Parent also agrees as follows:
(a) Provided that this Agreement --------- the Offeror will make the Offer by way of a take-over bid:
(i) at a cash offer price of $115.00 per Share, and the Offer will be open for acceptance until a time to be stated in the Offer Documents, which time shall not have been terminated in accordance with Section 7.01 and none of be the events minimum time required by applicable securities Laws (subject to the Offeror’s right to extend the period during which Shares may be deposited under the Offer pursuant to section 1.1(2)(b)(v));
(ii) subject only to the conditions set forth in Annex A hereto shall have occurred or be existingSchedule B-2; and
(iii) in accordance in all material respects with applicable securities Laws;
(b) except with the consent of Company, Purchaser shall commence the Offer as promptly as reasonably practicable after will not be amended to:
(i) increase the date hereof, but in no event later Minimum Tender Condition;
(ii) decrease the price per Share offered or change the form of consideration offered (other than five business days after by adding consideration);
(iii) decrease the initial public announcement number of Purchaser's intention Shares subject to commence the Offer. The obligation ;
(iv) modify the conditions to the Offer or impose additional conditions to the Offer, in either case, in a manner which is adverse to the Shareholders; or
(v) extend the Expiry Time (including as a result of Purchaser a variation to accept for payment and pay for the terms of the Offer) other than:
(A) to the extent required to satisfy any of the conditions set out in Schedule B-2 (subject to section 5.1(1)(b)(ii)); or
(B) in circumstances where all of the Shares tendered by Shareholders pursuant to the Offer shall be subject prior to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall such extension have been validly tendered taken up and not withdrawn prior paid for by the Offeror;
(c) to cause the expiration Offeror to prepare the Offer Documents in accordance in all material respects with applicable securities Laws in the English language (and, if required by applicable securities Laws, the French language) and provide Company with a reasonable opportunity to review and comment on the contents of the Offer Documents (including by providing a first draft of the Offer Documents to Company by no later than February 15, 2006, but recognizing that the contents of the Offer Documents are the responsibility of the Offeror and also shall be Parent) prior to their mailing to Shareholders;
(d) to cause the Offeror to mail the Offer Documents (subject only to the satisfaction of the other conditions set forth out in Annex A hereto. Purchaser expressly reserves Schedule B-1) not later than 5:00 p.m. (Toronto time) on February 23, 2006 (the right “Outside Mailing Date”); provided that, if the mailing of the Offer Documents is delayed by the failure to waive satisfy any of the conditions set out in Schedule B-1, other than any condition which by its nature would be impossible or impracticable to satisfy, then the Outside Mailing Date will be extended to the earlier of April 24, 2006 and the third business day following the date on which such condition, condition is satisfied;
(e) to increase cause the price per Share payable Offeror to take up and pay for the Shares deposited under the Offer in accordance with the terms of the Offer within the periods required by applicable securities Laws and upon the conditions of the Offer having been satisfied or waived;
(f) if the Offeror increases the value of the consideration for the Shares under the Offer, and to make any other changes in cause the terms and conditions of Offeror to pay such increased consideration to each Shareholder (including the Sellers) whose Shares are taken up by the Offeror under the Offer; provided, -------- however, that and
(g) to use its reasonable efforts to enable the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer set out in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected B-2 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 lawssatisfied.
Appears in 1 contract
The Offer. (a) Provided As promptly as practicable (and in any event within seven Business Days after the date hereof; provided that this Agreement --------- shall not have been terminated if the Company fails to satisfy its obligations under Section 1.2(b) in accordance with Section 7.01 and none of a timely manner to allow for the events set forth in Annex A hereto Purchaser to reasonably meet such seven Business Day deadline, then Purchaser shall have occurred or be existing, Purchaser shall a reasonable additional period of time in which to commence the Offer as promptly as reasonably practicable after receiving the date hereofinformation from the Company under Section 1.2(b)), but in no event later than five business days after the initial public announcement Purchaser shall (and Parent shall cause Purchaser to) commence, within the meaning of Purchaser's intention Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), the Offer to commence purchase all the outstanding Shares at the Offer Price. The consummation of the Offer. The obligation , and the obligations of the Purchaser to accept for payment and pay for the Shares tendered pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the condition Expiration Date that number of Shares which, together with the number of Shares (if any) then owned of record by Parent or the "Minimum Condition") that Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power (other than pursuant to the Support Agreement), represents at least a majority of the Shares then outstanding ----------------- Shares, other on a fully diluted basis (and in any event no less than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration a majority of the Offer voting power of the shares of capital stock of the Company then outstanding on a fully diluted basis and also shall be subject entitled to vote upon the satisfaction adoption of this Agreement) (collectively, the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or the Purchaser, of the other conditions set forth in Annex A heretoI.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or the Purchaser, of the other conditions set forth in Annex I, the Purchaser shall (and Parent shall cause the Purchaser to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after the Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.7.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. Parent and the Purchaser expressly reserves reserve the right to waive any such condition, to increase the price per Share payable in the Offer, and Offer Price or to make any other changes in the terms and conditions of the Offer; provided, -------- however, that unless otherwise contemplated by this Agreement or as previously approved by the Minimum Condition may Company in writing, the Purchaser shall not be waived except with (i) decrease the prior ------- written consent Offer Price, (ii) change the form of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share consideration payable in the Offer except in the situation where Parent or which reduces Purchaser adds new additional consideration to the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer Offer, (iv) amend or which imposes waive the Minimum Condition, (v) amend any of the other conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net I in a manner adverse to the seller holders of Shares, or (vi) extend the Expiration Date in casha manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days following the commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time on which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied, or waived by Parent or the Purchaser, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer on one or more occasions for successive periods of up to 20 Business Days each, the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions until the satisfaction, or, where permitted by applicable Law and this Agreement, waiver by Parent or the Purchaser of such conditions; provided, however, that the Purchaser shall not be required to extend the Offer if any condition to the Offer has not been satisfied on or prior to the date that is ninety days (the “Outside Date”), beyond the Outside Date; provided, however, that if as of the Outside Date either the HSR Condition or the CFIUS Condition shall not have been satisfied or any of the Other Required Governmental Approvals shall not have been obtained or any waiting period (or extension thereof) shall not have lapsed, then the Outside Date shall be extended for ninety days (the extended period being the “Outside Date”). Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Purchaser to terminate this Agreement pursuant to Article 7 hereof. In addition, the Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) Notwithstanding the foregoing, only if necessary to obtain sufficient Shares (after taking into account and including Shares issuable upon the terms and subject to the conditions exercise of the OfferTop-Up Option) to reach the Short Form Threshold, the Purchaser shall (and Parent shall cause the Purchaser to) provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act of up to 10 Business Days, the length of the initial “subsequent offering period” and each extension thereof to be determined by the Purchaser in its sole discretion. Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall pay(and Parent shall cause the Purchaser to) immediately accept for payment, as and pay for, all Shares that are validly tendered pursuant to the Offer during such “subsequent offering period”. The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly as practicable after expiration (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, for the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares validly tendered and not withdrawnto the registered holders thereof.
(bh) As promptly soon as reasonably practicable on the date of the commencement of the Offer, Parent and the Purchaser shall file with the Securities and SEC, in accordance with Rule 14d-3 under the Exchange Commission (the "SEC")
(i) Act, a Tender Offer Statement on --- Schedule 14D-1 TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements thereto, the "Schedule 14D-1") with respect “Offer Documents”). Parent and the Purchaser agree to cause the Offer Documents to be disseminated to holders of Shares, as and to the Offer extent required by the Exchange Act. Parent and (ii) a Rule 13e-3 -------------- Transaction Statement the Purchaser, on Schedule 13E-3 (together with all amendments the one hand, and supplements theretothe Company, the "Schedule 13E-3") with respect to the Offer and -------------- on the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1hand, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to promptly correct promptly any information provided by any of them it for use in the Offer Documents which Documents, if and to the extent that it shall have become false or misleadingmisleading in any material respect or as otherwise required by applicable Law, and Gambro, Parent and the Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 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 lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided As promptly as practicable (and in any event within seven Business Days after the date hereof; provided that this Agreement --------- shall not have been terminated if the Company fails to satisfy its obligations under Section 1.2(b) in accordance with Section 7.01 and none of a timely manner to allow for the events set forth in Annex A hereto Purchaser to reasonably meet such seven Business Day deadline, then Purchaser shall have occurred or be existing, Purchaser shall a reasonable additional period of time in which to commence the Offer as promptly as reasonably practicable after receiving the date hereofinformation from the Company under Section 1.2(b)), but in no event later than five business days after the initial public announcement Purchaser shall (and Parent shall cause Purchaser to) commence, within the meaning of Purchaser's intention Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), the Offer to commence purchase all the outstanding Shares at the Offer Price. The consummation of the Offer. The obligation , and the obligations of the Purchaser to accept for payment and pay for the Shares tendered pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the condition Expiration Date that number of Shares which, together with the number of Shares (if any) then owned of record by Parent or the "Minimum Condition") that Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power (other than pursuant to the Support Agreement), represents at least a majority of the Shares then outstanding ----------------- Shares, other on a fully diluted basis (and in any event no less than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration a majority of the Offer voting power of the shares of capital stock of the Company then outstanding on a fully diluted basis and also shall be subject entitled to vote upon the satisfaction adoption of this Agreement) (collectively, the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or the Purchaser, of the other conditions set forth in Annex A heretoI.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or the Purchaser, of the other conditions set forth in Annex I, the Purchaser shall (and Parent shall cause the Purchaser to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after the Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.7.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. Parent and the Purchaser expressly reserves reserve the right to waive any such condition, to increase the price per Share payable in the Offer, and Offer Price or to make any other changes in the terms and conditions of the Offer; provided, -------- however, that unless otherwise contemplated by this Agreement or as previously approved by the Minimum Condition may Company in writing, the Purchaser shall not be waived except with (i) decrease the prior ------- written consent Offer Price, (ii) change the form of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share consideration payable in the Offer except in the situation where Parent or which reduces Purchaser adds new additional consideration to the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer Offer, (iv) amend or which imposes waive the Minimum Condition, (v) amend any of the other conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net I in a manner adverse to the seller holders of Shares, or (vi) extend the Expiration Date in casha manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days following the commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time on which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied, or waived by Parent or the Purchaser, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer on one or more occasions for successive periods of up to 20 Business Days each, the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions until the satisfaction, or, where permitted by applicable Law and this Agreement, waiver by Parent or the Purchaser of such conditions; provided, however, that the Purchaser shall not be required to extend the Offer if any condition to the Offer has not been satisfied on or prior to the date that is ninety days beyond the date hereof (the “Outside Date”); provided, however, that if as of the Outside Date either the HSR Condition or the CFIUS Condition shall not have been satisfied or any of the Other Required Governmental Approvals shall not have been obtained or any waiting period (or extension thereof) shall not have lapsed, then the Outside Date shall be extended for ninety days (the extended period being the “Outside Date”). Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Purchaser to terminate this Agreement pursuant to Article 7 hereof. In addition, the Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) Notwithstanding the foregoing, only if necessary to obtain sufficient Shares (after taking into account and including Shares issuable upon the terms and subject to the conditions exercise of the OfferTop-Up Option) to reach the Short Form Threshold, the Purchaser shall (and Parent shall cause the Purchaser to) provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act of up to 10 Business Days, the length of the initial “subsequent offering period” and each extension thereof to be determined by the Purchaser in its sole discretion. Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall pay(and Parent shall cause the Purchaser to) immediately accept for payment, as and pay for, all Shares that are validly tendered pursuant to the Offer during such “subsequent offering period”. The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly as practicable after expiration (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, for the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares validly tendered and not withdrawnto the registered holders thereof.
(bh) As promptly soon as reasonably practicable on the date of the commencement of the Offer, Parent and the Purchaser shall file with the Securities and SEC, in accordance with Rule 14d-3 under the Exchange Commission (the "SEC")
(i) Act, a Tender Offer Statement on --- Schedule 14D-1 TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements thereto, the "Schedule 14D-1") with respect “Offer Documents”). Parent and the Purchaser agree to cause the Offer Documents to be disseminated to holders of Shares, as and to the Offer extent required by the Exchange Act. Parent and (ii) a Rule 13e-3 -------------- Transaction Statement the Purchaser, on Schedule 13E-3 (together with all amendments the one hand, and supplements theretothe Company, the "Schedule 13E-3") with respect to the Offer and -------------- on the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1hand, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to promptly correct promptly any information provided by any of them it for use in the Offer Documents which Documents, if and to the extent that it shall have become false or misleadingmisleading in any material respect or as otherwise required by applicable Law, and Gambro, Parent and the Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 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 lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex Exhibit A hereto shall have occurred or and be existingcontinuing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, (but in no any event not later than five business days after the initial public announcement of Purchaser's intention the execution and delivery of this Agreement), Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), an offer to purchase (the "Offer") all outstanding shares of the Company Common Stock at a price of $12.00 per share, net to the seller in cash (the "Offer Consideration"). The obligation of Parent and Sub to commence the Offer. The obligation of Purchaser to , consummate the Offer, accept for payment and to pay for shares of Company Common Stock validly tendered in the Offer and not withdrawn shall be subject only to those conditions set forth in Exhibit A hereto.
(b) Parent and Sub expressly reserve the right to amend or modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (and Parent shall not cause Sub to)
(i) decrease the Offer Consideration or the form of consideration therefor or decrease the number of Shares tendered sought pursuant to the Offer Offer, (ii) change, in any material respect, the conditions to the Offer, (iii) impose additional material conditions to the Offer, (iv) waive the condition that there shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the time the Offer expires a number of shares of Company Common Stock which constitutes at least 65% of the Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully- diluted basis" having the following meaning, as of any date: the number of shares of Company Common Stock outstanding, together with Shares which the Company may be required to issue pursuant to options, warrants or other obligations outstanding at that date), (v) extend the expiration date of the Offer and also shall be subject (except that Sub may extend the expiration date of the Offer (a) as required by law or (b) for such periods as Sub may reasonably deem necessary (but not to a date later than the 45th calendar day after the date of commencement) in the event that any condition to the satisfaction Offer is not satisfied), or (vi) amend any term of the other conditions set forth Offer in Annex A hereto. Purchaser expressly reserves the right any manner materially adverse to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions holders of the Offershares of Company Common Stock; provided, -------- however, that the Minimum Condition that, except as set forth above, Sub may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions waive any other condition to the Offer in addition its sole discretion; and provided further, that the Offer may be extended in connection with an increase in the consideration to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net paid pursuant to the seller in cash, upon the terms Offer so as to comply with applicable rules and subject to the conditions regulations of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the United States Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together . Assuming the prior satisfaction or waiver of the conditions to the Offer, Sub shall accept for payment, and pay for, in accordance with the terms of the Offer, all amendments shares of Company Common Stock validly tendered and supplements thereto, the "Schedule 14D-1") with respect not withdrawn pursuant to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, as soon as practicable after the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsexpiration date thereof.
Appears in 1 contract
Samples: Merger Agreement (Seven Up Rc Bottling Company of Southern California Inc)
The Offer. (a) Provided that As promptly as practicable after the execution of this Agreement --------- Agreement, Company shall not have been terminated in accordance with Section 7.01 and none commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) a tender offer (the "OFFER") for all of the events outstanding shares of Zengine Common Stock (other than for shares owned by the Company at the time of the Offer) (the "SHARES") in exchange for shares of Company Common Stock at the exchange ratio of 0.2259 shares of Company Common Stock in exchange for each share of Zengine Common Stock (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "OFFER PRICE"), subject to the conditions set forth herein and in Annex ANNEX A hereto shall have occurred hereto. No fraction of a share of Company Common Stock will be issued. Instead each Zengine stockholder, whether in the Offer or in the Merger, who would otherwise be existingentitled to receive a fraction of a share of Company Common Stock, Purchaser shall after combining all fractional shares to which such stockholder would be entitled, will receive cash in an amount equal to the product obtained by multiplying (i) the fraction of a share of Company Common Stock to which the holder would otherwise be entitled by (ii) $16.60.
(b) The obligations of Company to commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser and to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn on or prior to the expiration of the Offer and also not withdrawn shall be subject only to the satisfaction conditions set forth herein and in ANNEX A hereto, any of which conditions may be waived by Company in its sole discretion. The Offer shall be made by means of an offer to purchase (the other "OFFER TO PURCHASE") containing the terms set forth in this Agreement and the conditions set forth in Annex ANNEX A hereto. Purchaser .
(c) Company expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in modify the terms and conditions of the Offer; provided, -------- howeverthat, that the Minimum Condition may without Zengine's prior written consent, Company shall not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in decrease the Offer Price or which reduces decrease the maximum number of Shares to be purchased in sought, change the form of consideration or amend any condition of the Offer in any manner adverse to the holders of the Shares (other than with respect to insignificant changes or amendments and subject to the penultimate sentence of this Section 1.1(c)) ; PROVIDED, HOWEVER, that, if on the initial scheduled expiration date of the Offer, which imposes shall be 20 business days after the date that the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, Company may, from time to time until such time as all such conditions are satisfied or waived, in addition to those set forth in Annex A hereto. The Per Share Amount shallits sole discretion, subject to applicable withholding extend the expiration date; PROVIDED FURTHER, HOWEVER, that without Zengine's prior written consent, the expiration date of taxes, the Offer may not be net to the seller in cash, upon the terms and subject to the conditions extended beyond 60 calendar days after commencement of the Offer. Subject In addition, the Offer Price may be increased and the Offer may be extended to the terms and conditions extent required by applicable Law (as hereinafter defined) in connection with such increase, in each case without the consent of Zengine. If, immediately prior to the initial expiration date of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly withdrawn pursuant to the Offer together with the Shares beneficially owned by Company equal less than 90% of the outstanding Shares, Company may extend the Offer for a period not to exceed 20 business days, notwithstanding that all conditions to the Offer are satisfied as reasonably practicable on the of such expiration date of commencement of the Offer. In addition, Purchaser shall file Company may make available a "subsequent offering period," in accordance with Rule 14d-11 of the United States Securities and Exchange Commission (the "SEC")
(i) a Tender , of not greater than 20 business Agreement and Plan of Reorganization Page 3 days. On the terms and subject to the prior satisfaction or waiver of the conditions of the Offer Statement on --- Schedule 14D-1 (together with and this Agreement, Company shall, accept for payment and pay for all amendments Shares validly tendered and supplements thereto, the "Schedule 14D-1") with respect not withdrawn pursuant to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, as soon as practicable after the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms expiration of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsOffer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 SECTION 11.01 and none of the events set forth in Annex A ANNEX I hereto shall have occurred or and be existingcontinuing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereofpracticable, but in no event later than five three business days, after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (the "FORM TO/A"), an amended Offer to Purchase (the "AMENDED OFFER TO PURCHASE") and, if necessary, the related letter of transmittal and any related summary advertisement (the Form TO/A, the Amended Offer to Purchase and such other documents, together with all amendments and supplements thereto, the "OFFER DOCUMENTS") to reflect, among other things, an increase in the per share price to be paid in the Offer to $30.00 and, if necessary, an extension of the currently scheduled expiration date to allow the Offer to remain open for ten business days after from the initial public announcement date of Purchaser's intention to commence the Offersuch increase. The obligation of Purchaser Merger Co. to consummate the Offer and to accept for payment and to pay for Shares shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) the condition (that there shall be validly tendered in accordance with the "Minimum Condition") that at least a majority terms of the then outstanding ----------------- SharesOffer, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and also shall be subject to not withdrawn, a number of shares that, together with the satisfaction shares of Company Common Stock then owned by Parent and/or Merger Co., represents 50.1% of the shares of Company Common Stock outstanding (the "MINIMUM CONDITION") and (ii) the other conditions set forth in Annex A ANNEX I hereto. Purchaser Merger Co. expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any condition (other changes in the terms and conditions of the Offer; provided, -------- however, that than the Minimum Condition may Condition, which shall not be waived except with without the prior ------- written consent of the Special Committee; Company) or the condition relating to the expiration of the HSR Act and provided further that to increase the Per Share of Company Common Stock Amount. Notwithstanding the foregoing, no -------- ------- change may be made which (i) decreases the price per Per Share payable of Company Common Stock Amount, (ii) changes the form of consideration to be paid in the Offer Offer, (iii) increases the Maximum Amount or which the Minimum Condition, (iv) reduces the maximum number of Shares shares of Company Common Stock sought to be purchased in the Offer or which Offer, (v) imposes conditions to the Offer in addition to those set forth in Annex A ANNEX I hereto, (vi) except as specifically provided for in this SECTION 2.01(a), extends the expiration date of the Offer or (vii) otherwise alters or amends any term of the Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that the Offer may be extended for any period to the extent required by law or by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. The Per Share Amount shallParent and Merger Co. shall comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the generality of the foregoing, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject conditions of this Agreement, including but not limited to the conditions of the Offer. Subject , Merger Co. shall and Parent shall cause Merger Co. to, accept for payment and pay for shares of Company Common Stock tendered pursuant to the terms Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to SECTION 11.01 and subject to SECTION 2.01(d), Merger Co. shall extend the Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Offer have not been satisfied or waived as permitted pursuant to this Agreement, each such extension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in SECTION 2.01(d) or 2.01(f), Merger Co. shall not terminate the Offer without purchasing shares of Company Common Stock pursuant to the Offer. If at the expiration of the Offer a number of shares of Company Common Stock has been validly tendered and not withdrawn that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., exceeds the Maximum Amount, the number of shares of Company Common Stock to be purchased by Merger Co. pursuant to the Offer shall be prorated in accordance with Rule 14d-8 promulgated under the Exchange Act, so that the number of shares of Company Common Stock purchased by Merger Co. pursuant to the Offer, Purchaser together with the shares of Company Common Stock then owned by Parent and Merger Co., will represent 50.1% of the shares of Company Common Stock outstanding.
(b) Provided that this Agreement shall paynot have been terminated in accordance with SECTION 11.01 and none of the events set forth in ANNEX II hereto shall have occurred and be continuing, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall (i) commence the Exchange Offer pursuant to which Merger Co. shall offer to issue a number of commencement duly authorized, validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the OfferExchange Offer Ratio (as defined below) for each then issued and outstanding share of Company Common Stock (other than shares of Company Common Stock then owned by Parent or Merger Co.), Purchaser shall (ii) file with the Securities and SEC, to the extent required by the Exchange Commission Act, a Form TO (the "SECEXCHANGE FORM TO")
, an Offer to Exchange (ithe "OFFER TO EXCHANGE") a Tender and the related letter of transmittal and any related summary advertisement (the Exchange Form TO, the Offer Statement on --- Schedule 14D-1 (to Exchange and such other documents, together with all amendments and supplements thereto, the "Schedule 14D-1EXCHANGE OFFER DOCUMENTS") and (iii) file with respect the SEC a Registration Statement on Form S-4 (the "EXCHANGE FORM S-4") to register under the Securities Act the securities to be issued in the Exchange Offer. The obligation of Merger Co. to consummate the Exchange Offer and to issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Exchange Offer shall be subject only to the conditions set forth in ANNEX II hereto. Merger Co. expressly reserves the right to waive any such condition (other than the condition that at least five business days have elapsed since the acceptance for payment and payment for a number of shares of Company Common Stock pursuant to the Offer representing, together with shares of Company Common Stock previously owned by Parent, at least 50.1% of the issued and outstanding shares of Company Common Stock and the subsequent delivery of shares of Company Common Stock not purchased in the Offer to the Depositary under the Exchange Offer, which condition shall not be waived without the prior written consent of the Company) and to increase the Exchange Offer Ratio. Notwithstanding the foregoing, no change may be made which (i) decreases, or would have the effect of decreasing, the Exchange Offer Ratio, (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 changes the form of consideration to be paid in the Exchange Offer, (together with all amendments and supplements theretoiii) reduces the number of shares of Company Common Stock sought to be purchased in the Exchange Offer, the "Schedule 13E-3"(iv) with respect imposes conditions to the Exchange Offer and -------------- in addition to those set forth in ANNEX II hereto, (v) extends the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms expiration date of the related letter Exchange Offer or (vi) otherwise alters or amends any term of ----------------- transmittal and the Exchange Offer in any related summary advertisement (manner adverse to the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Common Stock; provided, in each case as and however, that the Exchange Offer may be extended (x) for any period to the extent required by law or by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable federal securities lawsto the Exchange Offer or (y) if the number of shares of Company Common Stock validly tendered in accordance with the Exchange Offer, together with shares of Company Common Stock owned by Parent as of such date, is less than 90% of the outstanding shares of Company Common Stock, as of the scheduled or extended expiration date. Parent and Merger Co. shall comply with the obligations respecting prompt delivery of shares of Parent Common Stock and announcement under the Exchange Act, and, without limiting the generality of the foregoing, subject to the terms and conditions of this Agreement, including but not limited to the conditions of the Exchange Offer, Merger Co. shall and Parent shall cause Merger Co. to, accept for exchange and issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Exchange Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Exchange Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Exchange Offer have not been satisfied or waived as permitted pursuant to this Agreement, each such extension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in Section 2.01(d) or 2.01(f), Merger Co. shall not terminate the Exchange Offer without accepting shares of Company Common Stock and issuing shares of Parent Common Stock pursuant to the Exchange Offer. Notwithstanding anything to the contrary set forth herein, no certificates representing fractional shares of Parent Common Stock shall be issued in connection with the Exchange Offer, and in lieu thereof each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock in the Exchange Offer will be paid an amount in cash equal to the product obtained by multiplying (A) the fractional share interest to which such holder would otherwise be entitled by (B) the Average Exchange Offer Price (as defined below).
(c) For purposes of this SECTION 2.01, "EXCHANGE OFFER RATIO" means the number of shares of Parent Common Stock determined as set forth below:
Appears in 1 contract
Samples: Merger Agreement (Ibp Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 Article Eight hereof and none of the events set forth in Annex A hereto I shall have occurred or and be existingcontinuing, Purchaser shall commence the Offer as promptly as reasonably practicable after practicable, and in any event on or prior to April 27, 2009, Parent (i) shall cause the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all of the outstanding Company Shares at the Offer Price; (ii) shall, upon commencement of the Offer but after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”); and (iii) shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof and the terms and conditions of this Agreement. The obligation of the Purchaser to accept for payment and or pay for any Company Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not validly withdrawn prior to the expiration of the Offer and also shall will be subject only to the satisfaction or waiver of the other conditions set forth in Annex A hereto. I hereto (the “Tender Offer Conditions”).
(b) Parent on behalf of the Purchaser expressly reserves the right from time to time, subject to Section 1.1(c), to waive any such condition, of the Tender Offer Conditions or to increase the price per Share payable in the Offer, and Offer Price or to make any other changes in the terms and conditions of the Offer; providedprovided that, -------- however, that the Minimum Condition may not be waived except with without the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallCompany, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.the
Appears in 1 contract
Samples: Merger Agreement (Infocus Corp)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 9.01, and that none of the events set forth described in any of paragraphs (c) or (d) of Annex A hereto shall have occurred or be existingoccurred, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)), the Offer as promptly as reasonably practicable after the date hereof, but in any event by no event later than five ten (10) business days after the initial public announcement of Purchaser's intention the execution of this Agreement, at a price per Share equal to commence the Offer. Per Share Amount (as adjusted as provided in Section 2.01(g), if applicable) and in compliance with Section 14(d) of the Exchange Act and all other provisions of applicable securities laws.
(b) The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to (x) the satisfaction of the condition (the "“Minimum Condition"”) that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, there shall have been validly tendered and not validly withdrawn prior to the expiration of the Offer and also shall be subject at least the number of Shares that, when added to the Shares, if any, already owned by Parent and Purchaser or any of their respective affiliates, and without giving effect to any treasury shares, constitute a majority of the then outstanding Shares (including all Shares issuable upon the exercise or conversion of any options, warrants, rights or other convertible securities that, if applicable, have a per share exercise or “strike” price that is less than the Per Share Amount, but only to the extent that such options, warrants, rights or other securities have vested or could (by their respective terms) become vested on or prior to the Termination Date, including in connection with the Transactions), and (y) the satisfaction of each of the other conditions set forth in Annex A hereto. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall not be subject to any other conditions.
(c) Purchaser expressly reserves the right to waive any such conditioncondition set forth in Annex A, to increase the price per Per Share payable in the OfferAmount, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which (i) decreases the price per Per Share payable in the Offer or which Amount, (ii) reduces the maximum number of Shares to be purchased in the Offer, (iii) changes the form of consideration to be paid in the Offer, (iv) extends the Offer or which except as provided in this Section 2.01, (v) imposes conditions to the Offer in addition to those set forth in Annex A heretohereto or amends the conditions set forth in Annex A, (vi) amends or supplements any other terms of the Offer in a manner adverse, or that could reasonably be expected to be adverse, to the Company or the holders of the Shares, or (vii) changes the Minimum Condition. Unless extended as provided in this Agreement, the offer shall expire on the date (the “Initial Expiration Date”) that is twenty (20) business days following the commencement of the Offer (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act). Notwithstanding the foregoing, if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (a “Subsequent Expiration Date”), any of the conditions set forth in Annex A is not satisfied (other than any conditions which by their nature are to be satisfied at the Acceptance Time) or has not been waived, then the Offer and its expiration shall automatically be extended (and re-extended) beyond the Initial Expiration Date or such Subsequent Expiration Date for one or more periods of ten (10) business days (or such other number of business days as may be jointly determined by Purchaser and the Company) per extension, with no such period ending later than June 15, 2008 (the “Termination Date”), in order to permit such condition to be satisfied (subject to the right of Purchaser to waive any condition (other than the Minimum Condition) in accordance with this Agreement on the Initial Expiration Date or any Subsequent Expiration Date and accept for payment Shares tendered pursuant to the Offer (and not validly withdrawn)). The Offer may not be terminated prior to its scheduled expiration (as such expiration may be extended and re-extended in accordance with this Agreement), unless this Agreement is terminated in accordance with Section 9.01.
(d) The Per Share Amount shall, subject to applicable withholding of taxesTaxes, be paid net to the applicable seller in cash, upon the terms and subject to the conditions of the Offer. To the extent any such amounts are so withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the person to whom such amounts would otherwise have been paid. Purchaser shall pay for all Shares tendered and not validly withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. 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 the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the reasonable satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(e) 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 promulgated under the Exchange Act and all other provisions of applicable securities laws of not less than three (3) nor more than twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) promulgated under the Exchange Act) immediately following the expiration of the Offer (as it may be extended as provided in this Agreement). Subject to the terms and conditions of set forth in this Agreement and the Offer, Parent shall cause Purchaser shall payto, as promptly as practicable after expiration of the Offerand Purchaser shall, accept for payment and pay for all Shares validly tendered and not withdrawnwithdrawn 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) promulgated under the Exchange Act.
(bf) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments and supplements thereto, the "“Schedule 14D-1"TO”) with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined)Offer. The Schedule 14D-1 and the Schedule 13E-3 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 14D-1, the Schedule 13E-3TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). GambroParent and Purchaser shall cause the Offer Documents to be disseminated to holders of Shares. The Company shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel all information concerning the Company that may be reasonably requested by Parent in connection with any action contemplated by this Section 2.01(f). Parent and Purchaser shall cause the Schedule TO and the Offer Documents to comply in all material respects with the Exchange Act and all other applicable Laws. Parent and Purchaser hereby further agree that the Schedule TO and the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by Parent or Purchaser with respect to information supplied by the Company or any of its officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. The Company hereby agrees that the information provided by or on behalf of the Company in writing specifically for inclusion or incorporation by reference in the Schedule TO or 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. Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which that shall have become false or misleadingmisleading in any material respect, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Purchaser shall give the Company and the Company’s counsel a reasonable opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC or dissemination to holders of Shares. Parent and Purchaser shall provide the Company and the Company’s counsel with any comments Parent or Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents after receipt of such comments and shall provide the Company and the Company’s counsel with a reasonable opportunity to participate in the response of Parent or Purchaser to such comments. Each of Parent and Purchaser shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(g) If, between the date of this Agreement and the first time at which Purchaser accepts for payment any Shares tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Time”), the outstanding Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount shall be adjusted to the extent appropriate.
(h) Without limiting the generality of Section 10.08, 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.
Appears in 1 contract
Samples: Merger Agreement (Cryocor Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 9.01, and that none of the events set forth described in any of paragraphs (c) or (d) of Annex A hereto shall have occurred or be existingoccurred, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)), the Offer as promptly as reasonably practicable after the date hereof, but in any event by no event later than five ten (10) business days after the initial public announcement of Purchaser's intention the execution of this Agreement, at a price per Share equal to commence the Offer. Per Share Amount (as adjusted as provided in Section 2.01(g), if applicable) and in compliance with Section 14(d) of the Exchange Act and all other provisions of applicable securities laws.
(b) The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to (x) the satisfaction of the condition (the "“Minimum Condition"”) that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, there shall have been validly tendered and not validly withdrawn prior to the expiration of the Offer and also shall be subject at least the number of Shares that, when added to the Shares, if any, already owned by Parent and Purchaser or any of their respective affiliates, and without giving effect to any treasury shares, constitute a majority of the then outstanding Shares (including all Shares issuable upon the exercise or conversion of any options, warrants, rights or other convertible securities that, if applicable, have a per share exercise or “strike” price that is less than the Per Share Amount, but only to the extent that such options, warrants, rights or other securities have vested or could (by their respective terms) become vested on or prior to the Termination Date, including in connection with the Transactions), and (y) the satisfaction of each of the other conditions set forth in Annex A hereto. The obligation of Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of accept for payment Shares to be purchased in the Offer or which imposes conditions tendered pursuant to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, shall not be subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawnany other conditions.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.
Appears in 1 contract
Samples: Merger Agreement (Cryocor Inc)
The Offer. (a) Provided Barrick shall promptly publicly announce its intention to amend the Original Offer, subject to the terms and conditions set forth below, to increase the consideration payable thereunder to, at the election of a Shareholder, $22.50 in cash or 0.8269 of a Barrick Common Share plus $0.05 in cash, in each case subject to pro ration as described in the Original Offer, provided that the maximum cash consideration will be $1,343,618,621 and the maximum share consideration will be 333,180,480 Barrick Common Shares (in each case calculated on a fully diluted basis). Barrick will continue to offer the "Rollover Option", as defined and described in the Original Offer. The conditions of the Original Offer will be replaced by the conditions set out in Schedule A. The Notice of Variation shall also contain an amendment to Section 13(e) of the Offer portion of the Circular to replace the phrase "in its sole discretion" with the phrase "in its reasonable discretion". Barrick will not be required to make the Offer in any jurisdiction where it would be illegal to do so.
(b) Barrick shall mail the Notice of Variation in accordance with the Securities Act (Ontario) and regulations thereunder and all other applicable securities laws, including the applicable securities laws of the United States, (collectively, "Applicable Securities Laws") to each registered holder of Shares as soon as reasonably practicable and, in any event, not later than 11:59 p.m. (Toronto time) on January 5, 2006 (such time on such date being referred to herein as the "Latest Mailing Time"); provided, however, that if the mailing of the Notice of Variation is delayed by reason of Placer Dome not having provided to Barrick the Directors' Circular referred to in Section 2.1(h)(vi) as well as any information pertaining to Placer Dome that is necessary for the completion of the Notice of Variation by Barrick, or not having provided Barrick with such other assistance in the preparation of the Notice of Variation as may be reasonably requested by Barrick in order that the Notice of Variation comply in all material respects with Applicable Securities Laws, then the Latest Mailing Time shall be extended to 11:59 p.m. on the fifth business day following the date on which Placer Dome supplies such necessary documents, information or other assistance.
(c) Prior to the printing of the Notice of Variation, Barrick shall provide Placer Dome and its counsel with a reasonable opportunity to review and comment on it, recognizing that whether or not such comments are appropriate will be determined by Barrick, acting reasonably.
(d) Barrick agrees that, provided all of the conditions to the Offer set out in Schedule A hereto shall have been satisfied or waived, Barrick shall take up and pay for all of the Shares tendered under the Offer promptly and in any event no later than two business days following the time at which it becomes entitled to take up such Shares under the Offer pursuant to applicable Laws.
(e) The Offer shall be made in accordance with Applicable Securities Laws and shall expire not earlier than midnight (Toronto time) on January 19, 2006 and not later than the 20th day following the Latest Mailing Time, subject to the right of Barrick to extend from time to time the period during which Shares may be deposited under the Offer (such time, as it may be extended, is referred to herein as the "Expiry Time"). Barrick shall use all reasonable efforts to consummate the Offer, subject to the terms and conditions hereof and thereof.
(f) It is understood and agreed that Barrick may, in its sole discretion, modify or waive any term or condition of the Offer; provided that Barrick shall not, without the prior consent of Placer Dome, increase or decrease the Minimum Tender Condition, impose additional conditions to the Offer, decrease the consideration per Share, decrease the maximum cash consideration or maximum share consideration, decrease the number of Shares in respect of which the Offer is made, change the form of consideration payable under the Offer (other than to increase the total consideration per Share and/or add additional consideration) or otherwise vary the Offer or any terms or conditions thereof (which for greater certainty, subject to Section 2.1(g), does not include a waiver of a condition) in a manner which is adverse to the Shareholders.
(g) Barrick may waive the Minimum Tender Condition only if: (i) there shall have been validly deposited pursuant to the Offer and not withdrawn at the Expiry Time that number of Shares which constitutes at least 60% of the Shares outstanding calculated on a fully diluted basis, or (ii) Barrick obtains such relief from the United States Securities and Exchange Commission as may be necessary to allow Barrick to take up Shares on more than one date and there shall have been validly deposited pursuant to the Offer and not withdrawn at an expiry date of the Offer that number of Shares which constitutes at least 50% of the Shares outstanding calculated on a fully diluted basis. In the circumstances described in clause (ii), subject to Applicable Securities Laws, Barrick will use its commercially reasonable efforts to extend the time for deposits to the Offer after any such take-up to permit Shareholders holding, in the aggregate, 662/3% of the Shares outstanding calculated on a fully diluted basis to accept the Offer.
(h) The obligation of Barrick to amend the Original Offer is conditional on the prior satisfaction of the following conditions, all of which conditions are included for the sole benefit of Barrick and any or all of which may be waived by Barrick in whole or in part in its sole discretion (other than the condition set out in Section 2.1(h)(iv) below, which must be waived if Barrick has failed to use its reasonable best efforts to obtain such assurances, and the condition set out in Section 2.1(h)(ix) below, which may be waived only with the consent of Placer Dome) without prejudice to any other right it may have under this Agreement --------- and which conditions shall be deemed to have been waived by the making of the amended Offer:
(i) the obligations of Barrick hereunder shall not have been terminated pursuant to Section 7.1;
(ii) the Barrick Common Shares to be issued to Shareholders shall have been conditionally approved for listing on the TSX and Barrick shall not have been advised that such Barrick Common Shares would not be approved for listing, subject to notice of issuance, by the NYSE;
(iii) no change, effect, event, circumstance, occurrence or state of facts (other than a change, effect, event, circumstance, occurrence or state of facts caused by Barrick, a Barrick Subsidiary or any Person acting jointly or in accordance concert with Section 7.01 and none of the events set forth in Annex A hereto Barrick) shall have occurred that would render it impossible for one or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority more of the then outstanding ----------------- Sharesconditions set out on Schedule A hereto to be satisfied;
(iv) assurances satisfactory to Barrick, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliatesacting reasonably, shall have been validly tendered received by Barrick that all waivers, rulings or orders necessary for Barrick to amend the Original Offer and not withdrawn prior to mail to the expiration Shareholders the Notice of Variation have been or will be obtained from all applicable securities commissions or other regulatory authorities;
(v) the Placer Dome Board of Directors shall have unanimously recommended that Shareholders accept the Offer and also shall be subject not have withdrawn such recommendation or changed, modified or qualified such recommendation in a manner that has substantially the same effect or taken any other action or made any other public statement in connection with the Offer inconsistent with such recommendation;
(vi) the Placer Dome Board of Directors shall have prepared and approved in final form, printed for distribution to Shareholders and delivered to Barrick for mailing with the satisfaction Notice of Variation an amended directors' circular (the "Directors' Circular") unanimously recommending that Shareholders accept the Offer;
(vii) Placer Dome shall have complied in all respects with its covenants in Section 6.2 and in all material respects with its other conditions covenants in this Agreement;
(viii) all representations and warranties of Placer Dome set forth in Annex A hereto. Purchaser expressly reserves this Agreement shall be true and correct in all material respects at the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions time of the making of the amended Offer; providedand
(ix) no cease trade order, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in injunction or other prohibition at Law shall exist against Barrick making the Offer or which reduces the maximum number of taking up or paying for Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of deposited under the Offer. Subject Prior to printing the terms Directors' Circular, Placer Dome shall provide Barrick with a reasonable opportunity to review and conditions comment on it, recognizing that whether or not such comments are appropriate will be determined by Placer Dome, acting reasonably. The Directors' Circular shall include a copy of the Offerwritten fairness opinion of each of CIBC World Markets Inc., Purchaser shall payXxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being Sachs & Co. referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsbelow.
Appears in 1 contract
Samples: Support Agreement (Placer Dome Inc)
The Offer. (a) Provided Provided, that this Agreement --------- shall not have been terminated in accordance with Section 7.01 its terms and provided that none of the events set forth in clause (iii)(a) of Annex A hereto shall have occurred and subject to there being no order, decree, judgment, injunction or be existingruling of a Governmental Authority of competent jurisdiction enjoining, restraining or otherwise prohibiting the commencement of the Offer and no Law having been enacted, entered, enforced, promulgated, amended, issued or deemed applicable to Parent, the Company or any subsidiary or affiliate thereof having such effect, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable practicable, but no later than seven (7) business days (commencing with the first business day after the date of this Agreement), after the date hereof. Following such launch, but in no event later than five business days after the initial public announcement each of Purchaser's intention Parent and Purchaser shall use its reasonable best efforts to commence consummate the Offer. , subject to the terms and conditions hereof.
(b) The obligation of Purchaser to accept for payment payment, purchase and pay for any Company Shares tendered pursuant to the Offer (and not validly withdrawn) shall be subject to the satisfaction or waiver pursuant to the terms hereof of (x) the condition (the "“Minimum Condition"”) that at least a majority that number of the then outstanding ----------------- Shares, other than Company Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and also shall be subject Offer, when added to any Company Shares already owned by Parent or any of its controlled Subsidiaries, if any, equal to fifty point one percent (50.1%) of the sum of the then outstanding Company Shares plus (without duplication) a number equal to the satisfaction number of Company Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights with an exercise price below the Per Share Amount, including the Company RSUs and Company Stock Options, in each case, which are convertible or exercisable on or prior to the later of (i) September 30, 2010 and (ii) the Outside Date, as the same may be extended pursuant to the terms hereof and (y) the other conditions set forth in Annex A heretohereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such conditioncondition (other than the Minimum Condition which may not be amended or waived), to increase the price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with without the prior ------- written consent of the Special Committee; and provided further that Company no -------- ------- change may be made which that decreases the price per Per Share Amount (except as provided in Section 2.1(i)), changes the form of consideration payable in the Offer, adds to the conditions to the Offer, extends the Offer or which reduces other than as set forth in this Section 2.1, decreases the maximum number of Company Shares sought to be purchased in the Offer, extends the Offer other than in a manner pursuant to and in accordance with the terms of Section 2.1(d), or which imposes conditions modifies or amends any condition to the Offer in addition any manner that broadens such conditions or is adverse to those the holders of Company Shares.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of Section 2.1(d) or as required by applicable Laws or the interpretations of the SEC (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire).
(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 9.1, (i) Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the Nasdaq Stock Market that is applicable to the Offer, and (ii) if, on the initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Purchaser shall extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of up to 10 business days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this Section 2.1(d), (A) if any of the events set forth in clause (iii)(a) of Annex A heretoshall have occurred on or before the initial Expiration Date or the end of any Additional Offer Period, in no event shall Purchaser be required to extend the Offer beyond the Initial Expiration Date or end of such Additional Offer Period, as applicable; (B) if, at the initial Expiration Date or the end of any Additional Offer Period, all of the Tender Offer Conditions, except for the Minimum Condition, are satisfied or have been waived, Purchaser shall only be required to extend the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for one or more additional periods not to exceed an aggregate of 20 business days, to permit the Minimum Condition to be satisfied; and (C) in no event shall Purchaser be required to extend the Offer beyond the Outside Date; provided further, that the foregoing clauses (i) and (ii) of this Section 2.1(d) shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Section 9.1.
(e) Purchaser may, in its sole discretion without the consent of the Company, provide for one subsequent offering period immediately following the Acceptance Date (as provided in Rule 14d-11 under the Exchange Act) of not less than three (3) nor more than 20 business days (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act). Notwithstanding the foregoing, no extension provided for in this Section 2.1(e) shall extend the Offer beyond the Outside Date. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, all shares of Company Common Stock validly tendered during such subsequent offering period, as promptly as practicable after any such shares of Company Common Stock are tendered during such subsequent offering period. Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 9.1.
(f) In the event that this Agreement is terminated pursuant to Section 9.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer.
(g) The Per Share Amount shall, subject to applicable withholding of taxes, be net to the applicable seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offerthis Agreement, Purchaser or Parent on Purchaser’s behalf shall pay, as promptly as practicable after expiration of the Offer, accept for payment and pay for all Company Shares validly tendered and not withdrawnwithdrawn promptly following the expiration of the Offer (the time and date of the acceptance for payment, the “Acceptance Date”). If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(bh) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments and supplements thereto, the "“Schedule 14D-1"TO”) with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined)Offer. The Schedule 14D-1 and the Schedule 13E-3 TO shall contain or shall incorporate by reference an offer to purchase (the "“Offer to Purchase"”) and forms form of the related letter of ----------------- transmittal and any related summary advertisement other ancillary documents pursuant to which the Offer will be made (the Schedule 14D-1, the Schedule 13E-3TO, the Offer to Purchase and such other documents, together with all exhibits, supplements and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). Gambro, Purchaser shall use its reasonable best efforts to cause the Offer Documents to be disseminated to holders of Company Shares in all material respects to the extent required by applicable federal securities laws. Parent and Purchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws. Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which that shall have become false or misleadingmisleading in any material respect, and Gambro, Parent and Purchaser further agree to take all steps necessary use reasonable best efforts to cause the Schedule 14D-1 and the Schedule 13E-3 TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Company Shares, in each case in all material respects as and to the extent required by applicable federal securities laws. The Company shall promptly furnish to Purchaser or Parent all information concerning the Company that is required or reasonably requested by Purchaser or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 2.1(h). Parent and Purchaser shall give the Company and its counsel a reasonable opportunity to review and comment on the Schedule TO before it is filed with the SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by Company and its counsel. In addition, Parent and Purchaser agree to (i) provide the Company and its counsel in writing with any written comments Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, (ii) use reasonable best efforts to provide a reasonably detailed description of any oral comments Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(i) If, between the date of this Agreement and the Acceptance Date, the outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to such Company Share shall be adjusted to the extent appropriate.
Appears in 1 contract
Samples: Merger Agreement (Microsemi Corp)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 Article X hereof and that none of the events conditions set forth in Annex A I hereto shall have occurred or and be existingcontinuing, Purchaser shall commence the Offer Buyer and Merger Subsidiary shall, as promptly as reasonably practicable after following the date hereof, but hereof and in no event later than five business days after the initial public announcement of Purchaser's intention the execution and delivery of this Agreement, commence a tender offer (within the meaning of Rule 14D-2 under the Securities Exchange Act of 1934, as amended, (including the rules and regulations promulgated thereunder, the "Exchange Act")) (the "Offer") to commence purchase all of the Offeroutstanding shares of Class A Common Stock, $.01 par value, of the Company (the "Shares") at a price of $33.50 per Share, net to the seller in cash. The obligation of Purchaser Merger Subsidiary to accept for payment and to pay for any Shares tendered pursuant to in the Offer shall be subject only (i) to the condition that there shall be validly tendered prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Buyer or Merger Subsidiary, represents at least a majority of the outstanding Shares 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, together with Shares the Company is then required to issue pursuant to obligations outstanding at that date under employee stock option or other benefit plans or otherwise (assuming all options and other rights to acquire Shares are fully vested and exercisable and all Shares issuable at any time have been issued), including without limitation, pursuant to the Company Stock Options, the Warrants, the Exchangeable Notes and the ASAA Preferred Stock (each as defined in Section 2.05) and pursuant to the Stock Purchase Plan (as defined in Section 4.03)) (the "Minimum Condition"), (ii) the condition (the "Financing Condition") that at least a majority Buyer shall have received the Financing (as defined below) necessary to consummate the Offer and the Merger contemplated by the commitment letter dated July 7, 1995 from Chemical Bank and Chemical Securities Inc. (the "Financing Commitment Letter") pursuant to which, subject to the terms and conditions thereof, Chemical Bank has committed to provide all of the then financing ("Financing") necessary to purchase all outstanding ----------------- Shares pursuant to the Offer and the Merger, and (iii) to the other conditions set forth in Annex I hereto.
(b) Without the prior written consent of the Company, neither Buyer nor Merger Subsidiary shall (i) decrease the price per Share or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought in the Offer, (iii) amend or waive satisfaction of the Minimum Condition, (iv) change or impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Shares, or (v) extend the expiration date of the Offer (except as required by applicable law and except that Merger Subsidiary may extend the expiration date of the Offer for up to sixty days after the initial expiration date in the event that any condition to the Offer is not satisfied); provided, however, that, except as set forth above, the Merger Subsidiary may waive any other than condition to the Offer in its sole discretion; and provided further, that the Offer may be extended in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"). Assuming the prior satisfaction or waiver of the conditions to the Offer, upon the terms of the Offer, the Merger Subsidiary will accept for payment and purchase, as soon as permitted under the terms of the Offer, all Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(bc) As promptly soon as reasonably practicable on the date of commencement of the Offer, Purchaser Buyer and Merger Subsidiary shall file or cause to be filed with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the 14D-1(the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 which shall contain or shall incorporate by reference an the offer to purchase (the "Offer to Purchase") and forms of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, other ancillary Offer documents and instruments pursuant to which the Offer to Purchase and such other documents, together will be made (collectively with all any supplements and or amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser ) and shall contain (or shall be amended in a timely manner to contain) all information which is required to be included therein in accordance with the Exchange Act and the --------------- Company rules and regulations thereunder and any other applicable law. Each of Buyer and Merger Subsidiary, on the one hand, and the Company, on the other hand, agree promptly to correct promptly any information provided by any either of them for use in the Offer Documents which if and to the extent that it shall have become false or misleading, misleading in any material respect and Gambro, Parent and Purchaser Merger Subsidiary further agree agrees to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be filed promptly with the SEC and to be disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities laws.law. The Company and its counsel shall be given the opportunity to review the Offer
Appears in 1 contract
Samples: Tender Offer Statement
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as As promptly as reasonably practicable (and in any event within five (5) Business Days) after the date hereof, but in no event later than five business days after the initial public announcement Purchaser shall commence, within the meaning of Purchaser's intention Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), the Offer to commence purchase all the outstanding Shares at the Offer Price. The consummation of the Offer. The , and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the condition Expiration Date (the "Minimum Condition"A) that number of Shares which, together with the Contributed Shares and any other Shares then subject to the Contribution Agreement and the number of Shares (if any) then owned of record by Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Shares then outstanding ----------------- Shares(determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote upon the adoption of this Agreement and approval of the Merger, and (B) that number of Shares which represents at least a majority of the Shares then issued and outstanding, excluding from such calculation (x) the Contributed Shares and any other Shares then subject to the Contribution Agreement, (y) other Shares then owned of record or beneficially by any executive officer (within the meaning of Section 16 under the Exchange Act) of the Company (provided, that any Shares that may be deemed to be beneficially owned by the stockholder party to the Contribution Agreement pursuant to that certain Voting Agreement dated September 30, 2005, by and between the Investor and the Xxxxxx X. Xxxxxxxx Revocable Trust u/a/d December 18, 2006, as amended or extended from time to time, shall not be deemed to be beneficially owned by such stockholder for purposes of this calculation), and (z) any Shares then beneficially owned by Parent or any of its direct or indirect Subsidiaries, including the Purchaser (collectively, the “Minimum Condition”); and (ii) the satisfaction, or waiver by the Purchaser, of the other conditions and requirements set forth in Annex I. The conditions and requirements to the Offer set forth in Annex I are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to such condition and, other than Shares owned beneficially the Minimum Condition and the Governmental Approval Condition, may be waived by the Purchaser, in its sole discretion, in whole or of record by Gambroin part at any time and from time to time, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior subject to the expiration of the Offer and also shall be subject this Section 1.1.
(b) Subject to the satisfaction of the Minimum Condition and the Governmental Approval Condition, and the satisfaction, or waiver by the Purchaser, of the other conditions and requirements set forth in Annex A heretoI, the Purchaser shall accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be promptly paid to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and Offer Price or to make any other changes in the terms and conditions of the Offer; provided, -------- however, that unless otherwise contemplated by this Agreement or as previously approved by the Minimum Condition may not be waived except with Company in writing (by action of the prior ------- written consent Company Board upon the recommendation of the Special Committee; and provided further that no -------- ------- ), the Purchaser shall not (i) decrease the Offer Price, (ii) change may be made which decreases the price per Share form of consideration payable in the Offer or which reduces Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition or the Governmental Approval Condition, (v) amend any of the other conditions or requirements to the Offer set forth in Annex I in a manner adverse to the holders of Shares or (vi) add any additional conditions or requirements (other than procedural and other customary requirements for tendering Shares) to the Offer that are not expressly set forth in Annex I.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m. (New York City time) on the date that is the later of: (i) twenty-one (21) Business Days following the commencement of the Offer and (ii) three (3) Business Days following the Solicitation Period End Date (such date and time, 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 imposes the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to the second (2nd) Business Day following the Solicitation Period End Date, the Company has delivered a notice of Exempted Person in accordance with Section 5.4(b), the Purchaser shall extend the Offer for successive periods of at least three (3) Business Days each until 5:00 p.m. (New York City time) on the Business Day immediately following the Cut-Off Date, provided, however, that the Purchaser shall not be required to extend the Offer if on or prior to the then scheduled Expiration Date all Competing Proposals by Exempted Persons have expired by their terms or been withdrawn or terminated. If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer in addition to those (including the Minimum Condition and the other conditions and requirements set forth in Annex A hereto. The Per Share Amount shallI) have not been satisfied, subject or if permitted by Section 1.1(c), waived by the Purchaser, the Purchaser shall extend the Offer for successive periods of up to applicable withholding ten (10) Business Days each, the length of taxeseach such period to be determined by the Purchaser in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that the Purchaser shall not, and shall not be net required to, extend the Offer (i) beyond November 15, 2011 (the “Initial Outside Date”), or (ii) if, on the Initial Outside Date, all of the conditions to the seller in cashOffer have been satisfied, upon or waived by the terms Purchaser, other than the Minimum Condition and subject either or both of the Governmental Approval Condition or the condition to the conditions Offer set forth in clause (c)(ii)(z) of Annex I, beyond December 31, 2011 (the “Extended Outside Date”); provided, further, that the Purchaser shall not be required to extend the Offer (but may elect to do so in its sole discretion) beyond the Business Day immediately following the Cut-Off Date, if the Company has delivered a notice of Exempted Person in accordance with Section 5.4(b), unless the Company Board has rejected the Competing Proposal giving rise to such notice and reconfirmed the Company Board Recommendation, which rejection of such Competing Proposal and reconfirmation of the OfferCompany Board Recommendation has been publicly announced by the Company. In addition, the Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) If necessary to obtain sufficient Shares to reach the Short Form Threshold (without regard to the exercise of the Top-Up Option), the Purchaser may, in its sole discretion, provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall payimmediately accept for payment, as and pay for, all Shares that are validly tendered pursuant to the Offer during such “subsequent offering period”. The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f) and Rule 14d-11 under the Exchange Act.
(g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall promptly as practicable after expiration (and in any event within seventy-two (72) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, for the Purchaser shall not accept any Shares pursuant to the Offer and shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares validly tendered and not withdrawnto the registered holders thereof.
(bh) As promptly soon as reasonably practicable on the date of the commencement of the Offer, the Purchaser shall file with the Securities and SEC, in accordance with Rule 14d-3 under the Exchange Commission (the "SEC")
(i) Act, a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") TO with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments amendments, supplements and supplements exhibits thereto, the "“Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter definedTO”). The Schedule 14D-1 and the Schedule 13E-3 TO shall contain 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 14D-1include, the Schedule 13E-3as exhibits, the Offer to Purchase Purchase, a form of letter of transmittal and such other documentsa form of summary advertisement (collectively, together with all any amendments, supplements and amendments exhibits thereto, being referred to herein collectively as the "“Offer Documents"”). GambroThe Purchaser may, Parentbut shall not be required to, provide guaranteed delivery procedures for the tender of Shares in the Offer. The Purchaser agrees to cause the Offer Documents to be disseminated to holders of Shares, as and to the --------------- Company agree extent required by the Exchange Act. The Purchaser agrees to promptly correct promptly any information provided included or incorporated by any of them for use reference in the Offer Documents which Documents, if and to the extent that it shall have become false or misleadingmisleading in any material respect or as otherwise required by applicable Law, and Gambro, Parent and the Purchaser further agree to take all steps necessary agrees to cause the Schedule 14D-1 and the Schedule 13E-3 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 lawsthe Exchange Act. The Company agrees to notify the Purchaser in writing if and to the extent that the Company becomes aware that any information provided to the Purchaser by the Company expressly for use in the Offer Documents becomes false or misleading in any material respect. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and the Purchaser shall give due consideration to the additions, deletions or changes suggested thereto by the Company and its counsel. In addition, the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that the Purchaser or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and the Purchaser shall give due consideration to the additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existingIf a Purchase Election is made, Purchaser Raleigh shall commence the Offer as promptly as reasonably practicable not later than the twentieth business day after the date hereofon which Raleigh makes a Purchase Election pursuant to the Response Notice. Notwithstanding anything to the contrary herein, but the Offer shall comply in no event later than five business days after all material respects with the initial public announcement requirements of Purchaser's intention to commence Sections 14(d) and 14(e) of the OfferSecurities Exchange Act of 1934, as amended, and the regulations thereunder ("Securities Exchange Act"), all other applicable laws and with the terms of this Agreement. The obligation closing of Purchaser to accept for payment the purchase and pay for Shares sale of the Interests tendered pursuant to the Offer shall be subject to the condition (the "Minimum ConditionOffer Closing"), may be conditioned on only the following:
(i) that at least a majority since the making of the then outstanding ----------------- SharesPurchase Election, no preliminary or permanent injunction or other than Shares owned beneficially by order of any federal or of record by Gambrostate court, Parent, Purchaser government or any of their affiliates, governmental authority or agency shall have been issued and shall remain in effect which (A) makes illegal, delays or otherwise directly or indirectly restrains or prohibits the making of the Offer or the acceptance for payment, purchase of or payment for any Interests by Raleigh, or the purchase and sale of the GP Assets in the manner contemplated hereby, (B) imposes or confirms limitations on the ability of Raleigh effectively to exercise full rights of ownership of any Interests or the GP Assets or to exercise its powers as general partner of the Partnership subsequent to the GP Assets Closing, including, without limitation, the right to vote Interests on all matters properly presented to the Partnership's Interestholders, (C) requires divestiture by Raleigh of a material amount of Interests; or (D) would materially adversely affect the business, properties, assets, liabilities, financial condition, operations or results of operation of the Partnership taken as a whole or provides that the Partnership would dissolve upon consummation of the transfer of the GP Assets in the manner contemplated hereby;
(A) since the making of the Purchase Election, there shall not be any action taken by, or any statute, rule, regulation or order enacted, promulgated or issued by, any federal or state court, government or governmental authority or agency, which would, directly or indirectly, result in any of the consequences referred to in clauses (A) through (D) of paragraph (i) above and (B) if Raleigh is advised by its counsel that a filing under HSR (as defined in Section 10(b)) is required, the applicable waiting period shall have expired or been terminated;
(iii) since the making of the Purchase Election (A) no change or development shall have occurred and remain in effect in the business, properties, assets, liabilities, financial condition, operations, or results of operations of the Partnership which is or would reasonably be expected to be materially adverse to the Partnership taken as a whole, (B) no material breach by the General Partner of its obligations under Sections 4(b), 4(c), 4(d) or 8(b) of this Agreement shall have occurred and remain in effect, and (C) there shall have been no taking of action constituting, or authorization or proposal by the General Partner of, an Organic Change pursuant to the "proviso" clause of clause (E) of Section 8(b);
(iv) since the making of the Purchase Election, there shall not have occurred and remain in effect (A) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the counter market in the United States, (B) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (C) any limitation by any governmental authority on the extension of credit by lending institutions, or any imposition by any governmental authority of currency controls, in the United States or (D) in the case of any of the foregoing existing at the time of the making of the Purchase Election, a material acceleration or worsening thereof;
(v) the occurrence, contemporaneously with the Offer Closing, of the GP Assets Closing, provided that Raleigh has satisfied all of its obligations with respect to the purchase of the GP Assets; and
(vi) the execution and delivery by the General Partner and JMB Realty Corporation ("JMB") of the Indemnification and Release Agreement and the execution and delivery by the JMB Principals (as hereinafter defined) of the letter annexed to the Indemnification and Release Agreement as Exhibit B, in each case pursuant to Section 14 hereof. Raleigh shall keep the Offer open for no more than 40 business days and no less than 30 business days and shall promptly purchase for cash any and all Interests validly tendered (and not withdrawn withdrawn) prior to the expiration of the Offer and also shall (the date on which the Offer expires in accordance with this sentence, as the same may be subject to extended in accordance with the satisfaction of the other conditions proviso set forth in Annex A hereto. Purchaser expressly reserves below, the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer"Final Expiration Date"); provided, -------- however, that Raleigh may extend the Minimum Condition Final Expiration Date under the following circumstances: (A) if there is in effect, on such date, any preliminary or permanent injunction or other order of any federal or state court, government or governmental authority or agency of the type described in Section 4(a)(i) (an "Offer Injunction"), the Final Expiration Date may not be waived except extended to the earliest practicable date on which the Offer may expire in accordance with the prior ------- written consent Securities Exchange Act following the earlier to occur of (1) the vacation or dissolution of such Offer Injunction and the dissemination to Interestholders of additional offering materials containing any necessary disclosure relating thereto or (2) the last day of the Special CommitteeCooperation Period; and provided further that no -------- ------- change (B) the Final Expiration Date may be made extended to the earliest practicable date on which decreases the price per Share payable in the Offer or which reduces may expire in accordance with the maximum number Securities Exchange Act following the dissemination to Interestholders of Shares to be purchased in additional offering materials prepared for the Offer or which imposes conditions to purpose of complying with comments by the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding staff of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SECCommission"), provided that Raleigh shall use commercially reasonable efforts to comply with such comments as promptly as practicable; (C) in the event that a competing offer for Interests is commenced by a third party bidder who is not affiliated with Raleigh (a "Competing Offer"), the Final Expiration Date may be extended to the earliest practicable date on which the Offer may expire in accordance with the Securities Exchange Act following an increase in the Offer price to a price equal to or higher than the price offered by the competing bidder and the dissemination to Interestholders of amended offering materials disclosing such increase, provided that the Offer is extended for the purpose of making such increase prior to the occurrence of the Final Expiration Date theretofore in effect; and (D) in the event that Raleigh is advised by its counsel that a filing under HSR will be required in order to consummate the GP Assets Closing, the Final Expiration Date of the Offer may be extended to the earliest practicable date on which the Offer may expire in accordance with the Securities Exchange Act following the making of such filing and any required filing by the General Partner, the expiration or termination of any applicable waiting period and the dissemination to Interestholders of additional offering materials containing any necessary disclosure relating thereto. Raleigh shall make a filing under HSR in connection with the consummation of the Offer Closing and the GP Assets Closing, the GP Assets Call Exercise or the closing of a Permitted Transaction, if such filing is required under HSR. Raleigh shall make all decisions regarding the conduct of the Offer and the acquisition and transfer of Interests pursuant thereto, except that Raleigh shall not amend or otherwise modify the terms of the Offer or conduct the Offer or acquire or transfer Interests in a manner that violates or is inconsistent with its obligations under this Agreement, including without limitation, Raleigh shall not condition its Offer on the satisfaction of any conditions other than those provided for in this Agreement. At the Offer Closing, Raleigh shall, unless one or more of the conditions set forth in Section 4(a) hereof has not been satisfied or waived by Raleigh, purchase all Interests validly tendered prior to the Final Expiration Date (and not withdrawn) pursuant to the Offer. Raleigh shall retain at its sole expense a firm (the "Information Agent") to solicit tenders from Interestholders and to provide Interestholders with information about the opportunity to tender Interests in the Offer.
(b) If Raleigh makes the Offer at or above the Buy/Sell Price in a timely manner in accordance with the terms hereof in all material respects and unless another tender offer or change of control transaction is proposed at a higher price, the General Partner (i) a Tender will recommend the Offer Statement on --- Schedule 14D-1 to Interestholders who need or want liquidity, and (together with all amendments and supplements thereto, the "Schedule 14D-1"ii) will remain neutral with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with for all amendments and supplements thereto, the "Schedule 13E-3") other Interestholders. The General Partner may change any recommendation it has made to Interestholders with respect to the Offer to reflect such other tender offer or change of control transaction at a higher price (but no such proposal of a higher priced tender offer or change of control transaction or change by the General Partner of its recommendation with respect to the Offer shall release the General Partner from its obligation to consummate the sale of the GP Assets to Raleigh in accordance with the terms and -------------- conditions hereof). The General Partner shall, and shall cause the Partnership and its transfer agent (consistent with its standard practices and procedures) to cooperate with Raleigh in promulgating the Offer in the manner hereinafter set forth in this Section 4(b). Within 5 business days following the date on which Raleigh makes a Purchase Election pursuant to the Response Notice, the General Partner will cause the Partnership, at Raleigh's cost and expense not to exceed $1,000, to furnish Raleigh with a list, as of the most recent practicable date and in computer readable form, of the names, addresses and numbers of Interests held by Interestholders of the Partnership (the "List"), together with such computer processing data as is reasonably necessary to make use of such computer readable List and a printout of the List for verification purposes. The General Partner will not, and will not cause or permit its affiliates to, take any action that in its judgment would reasonably be expected to result in the conditions to the Offer set forth in Section 4(a) (other Transactions than the condition in Section 4(a)(iii)(C)) above not to be satisfied. In addition, the General Partner (i) will comply, and cause the Partnership to comply, in all material respects with the Securities Exchange Act in connection with the Offer, and (ii) subject to satisfaction in all material respects of the conditions and requirements for transfer of Interests generally imposed or required by the Partnership and its transfer agent, including delivery of duly completed forms of assignment and payment of all applicable transfer fees, will, if the GP Assets Closing (as hereinafter defined) has not yet occurred, recognize the transfer to Raleigh of Interests acquired in the Offer and, if requested by Raleigh, will admit Raleigh as a limited partner with respect to all Raleigh Interests and all Interests acquired by Raleigh in the Offer and as to which the transfer to Raleigh has been recognized. The General Partner shall make a filing under HSR in connection with the consummation of the Offer Closing and the GP Assets Closing, the GP Assets Call Exercise or the closing of a Permitted Transaction if required under HSR.
(c) Other than as provided in this Agreement, the General Partner will not, and will cause its affiliates not to, directly or indirectly, purchase or otherwise acquire beneficial ownership of Interests, enter into any agreement with a third party for the General Partner or any of its affiliates to purchase or otherwise acquire beneficial ownership of any Interests, or make any offer to purchase or otherwise acquire beneficial ownership of Interests (other than the Raleigh Interests and any Resolved Interests), at any time commencing on the date hereof through and including the earliest to occur of (i) the Raleigh Interests Closing, (ii) the Final Expiration Date, (iii) an Offer Default (as hereinafter defined). The Schedule 14D-1 , or (iv) the termination of this Agreement.
(d) In connection with the Offer, Raleigh with respect to the Raleigh Interests will consent to, and the Schedule 13E-3 shall contain or shall incorporate by reference an offer with respect to purchase (the "Offer to Purchase") and forms of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use Interests tendered in the Offer Documents which shall have become false will obtain the consent of the tendering Interestholders to, waive and amend Section 7.1 of the Partnership Agreement of the Partnership so as to permit the transfer and/or assignment to Raleigh of all Interests tendered in the Offer, notwithstanding that such transfer and/or assignment may or misleadingwould result in the termination of the Partnership under the applicable provisions of the Internal Revenue Code of 1986, as amended. Subject to Raleigh complying in all material respects with the requirements of Section 4 in the conduct of the Offer, the General Partner will cooperate with Raleigh in giving effect to, and Gambrowill consent to, Parent any such waiver and Purchaser further agree amendment of the Partnership Agreement; provided, however, nothing herein shall be deemed to take require the General Partner to recommend in favor of any such waiver and amendment or to assist or participate in the solicitation of consents with respect thereto.
(e) Anything herein to the contrary notwithstanding, if a Competing Offer is commenced for any and all steps necessary Interests at a price in excess of the Offer price, Raleigh may elect, in its sole discretion, at any time such Competing Offer remains outstanding to cause sell all, but not less than all, of the Schedule 14D-1 Raleigh Interests (and any Resolved Interests) to the competing bidder pursuant to the Competing Offer. If the Raleigh Interests are sold pursuant to such Competing Offer, Raleigh shall be released from its obligation to consummate the Offer and Raleigh and the Schedule 13E-3 General Partner shall each be released from their respective obligations to consummate the purchase and sale of the GP Assets.
(f) Anything herein to the contrary notwithstanding, if Raleigh makes a Purchase Election, it shall be released from its obligations to commence the Offer pursuant to Section 4(a) hereof if one or more of the conditions set forth in Section 4(a)(i), (ii), (iii) or (iv) has not been satisfied as so corrected of the date by which Raleigh would otherwise be required to commence the Offer. In the event that Raleigh commences the Offer notwithstanding the failure of any such condition to be filed with satisfied as of the SEC commencement date of the Offer, its commencement of the Offer will not constitute a waiver of its right to assert the failure of such condition, or any other condition set forth in Section 4(a), to be satisfied as the basis for a decision to terminate the Offer without purchasing any Interests tendered pursuant thereto.
(g) If Raleigh makes a Purchase Election, Raleigh and the Purchaser shall execute and deliver to each 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 lawsPurchaser Release Agreement.
Appears in 1 contract
Samples: Buy/Sell Agreement (American Real Estate Holdings L P)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none As promptly as practicable after the public announcement of the events execution hereof, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (the "Offer") for all of the outstanding shares of Common Stock, par value $.01 per share (the "Shares"), of the Company ("Company Common Stock") (including the related rights (the "Company Rights") to purchase the Company's Series A Junior Participating Preferred Stock, par value $.01 per share ("Company Junior Preferred Stock"), pursuant to the Rights Agreement, dated as of January 1, 1996 (as amended, the "Company Rights Plan"), between the Company and Chicago Trust Company of New York, as rights agent), at a price of $13.75 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to the conditions set forth in Annex A hereto hereto. The date on which the Offer commences (within the meaning of Rule 14d-2 under the Exchange Act) shall have occurred or hereinafter be existing, referred to as the "Offer Date." The obligations of Purchaser shall to commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser and to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn on or prior to the expiration of the Offer and also not withdrawn shall be subject only to there being validly tendered and not withdrawn immediately prior to the satisfaction expiration of the Offer that number of Shares that represents at least a majority of the outstanding shares of Company Common Stock on a fully-diluted basis (including without limitation all shares issuable upon the conversion of any convertible securities or upon exercise of any options, warrants or other rights) (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which that decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A heretohereto or increases the Minimum Condition. The Per Share Amount shall, subject to applicable withholding of taxes, be net date on which Purchaser shall purchase and pay for Shares tendered pursuant to the seller in cash, upon Offer shall hereinafter be referred to as the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn"Purchase Date."
(b) As promptly The Offer shall initially be scheduled to expire 20 business days following the Offer Date. If, at a then-scheduled expiration date, the conditions to the Offer set forth in Annex A have not been satisfied (other than conditions that are not capable of being satisfied), Purchaser may extend the Offer from time to time until December 31, 2000, without consent of the Company, for such amount of time as is reasonably practicable on necessary to cause such conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Purchaser to extend the Offer pursuant to the immediately preceding sentence, at the request of the Company, Purchaser shall, and Parent shall cause Purchaser to, extend the expiration date of commencement the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the Offerconditions set forth in Annex A shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer (other than the conditions set forth in paragraphs (b), (c), (d) or (e) of Annex A) and (ii) such condition is reasonably capable of being satisfied. Notwithstanding the foregoing, Purchaser shall file with may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC")
) applicable to the Offer and (ii) if 25% or more but less than 90% of the outstanding Shares on a fully diluted basis shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as reasonably practicable on the Offer Date, Parent and Purchaser shall file with the SEC a Tender Offer Statement on --- Schedule 14D-1 TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1TO") with respect to ). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (collectively, together with all any amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). GambroParent and Purchaser jointly and severally represent and warrant to the Company that the Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, Parenton the date 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 representation is made by Parent or Purchaser with respect to information furnished by the Company for inclusion in the Offer Documents. The Company represents and warrants to Parent and Purchaser that the information supplied in writing by the Company for inclusion in the Offer Documents will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent and Purchaser, on the one hand, and the --------------- Company agree Company, on the other hand, agrees to promptly correct promptly any information provided by any of them it for use in the Offer Documents which if and to the extent that it shall have become false or misleading, and Gambro, misleading in any material respect and Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. Each of Parent and Purchaser agrees to take all steps necessary to cause the Offer Documents to be filed with the SEC and 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 outside counsel shall be given the opportunity to review the Schedule TO before it is filed with the SEC. In addition, Parent and Purchaser shall provide the Company and its outside counsel with any comments, whether written or oral, Parent, Purchaser or their outside 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.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 8.1 hereof and none of the events set forth in Annex A I hereto shall have occurred or 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 reasonably practicable after the date hereofpracticable, but in no event later than five seven (7) business days after (as defined in Rule 14d-1 under the Exchange Act) following the initial public announcement of Purchaser's intention to commence the Offerexecution of this Agreement (treating the business day on which such public announcement occurs as the first business day). The obligation of Parent and Purchaser to accept for payment and pay for any of the Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other those conditions set forth in Annex A hereto. Purchaser I. Parent expressly reserves the right from time to time, subject to Sections 1(b) and 1(d) hereof, to waive any such condition, to increase the price per Per Share payable in the OfferAmount, and or to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, shall be net to the seller in cash, 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. Subject Shares held by the Company or any of its Subsidiaries (as hereinafter defined) will be tendered pursuant to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on Without the date of commencement prior written consent of the OfferCompany, Purchaser Parent shall file with the Securities and Exchange Commission (the "SEC")
not (i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, decrease the "Schedule 14D-1") with respect to Per Share Amount or change the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms form of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use consideration payable in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree (other than to take all steps necessary to cause increase the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.Per Share Amount)
Appears in 1 contract
Samples: Merger Agreement (Burns International Services Corp)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as As promptly as reasonably practicable (and in any event within fifteen (15) Business Days after the date hereofof this Agreement, but in no event later than five business days after as such period may be extended by Parent and the initial public announcement Purchaser if and to the extent the Company fails to satisfy its obligations pursuant to the Section 1.1(g)(iv)), the Purchaser shall commence, within the meaning of Purchaser's intention Rule 14d-2 under the Exchange Act, the Offer to commence purchase all of the outstanding Shares for cash at the Offer Price. The consummation of the Offer. The , and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer (and any obligation of Parent to cause Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer), shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the condition Expiration Date that number of Shares which, together with the number of Shares (if any) then owned by Parent or any of its wholly-owned direct or indirect Subsidiaries, including the "Minimum Condition") that Purchaser, represents at least a majority of the Shares then outstanding ----------------- (determined on a fully diluted basis) and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote upon the adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, other than but not from the number of outstanding Shares, Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior pursuant to guaranteed delivery procedures (to the expiration extent such procedures are permitted by the Purchaser) that have not yet been delivered in settlement or satisfaction of such guarantee) (collectively, the “Minimum Condition”) and (ii) the satisfaction, or waiver by the Purchaser (to the extent permitted in Annex I), of each of the other conditions and requirements set forth in Annex I. Subject to Annex I, the conditions and requirements to the Offer set forth in this Section 1.1 and also shall Annex I are for the sole benefit of the Purchaser and may be subject asserted by the Purchaser regardless of the circumstances giving rise to such condition or may be waived by the Purchaser, in its sole discretion, in whole or in part at any time and from time to time.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by the Purchaser (to the extent permitted by Annex I), of each of the other conditions and requirements set forth in Annex A heretoI, the Purchaser shall, and Parent shall cause the Purchaser to, upon the first Expiration Date (as it may be extended in accordance with Section 1.1(e)) upon which such conditions are satisfied or waived, cause the Acceptance Time to occur, and the Purchaser shall, and the Parent shall cause the Purchaser to, pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable (and in any event not more than three (3) Business Days) following the Acceptance Time. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid, without interest, subject to any applicable withholding taxes. To the extent any such amounts are so withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and Offer Price or to make any other changes in the terms and conditions of the Offer; provided, -------- however, that unless otherwise contemplated by this Agreement or as previously approved by the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change Company in writing, which approval may be made which decreases withheld in Company’s sole discretion, the price per Share Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer or which reduces (other than adding consideration), (iii) reduce the maximum number of Shares to be purchased in the Offer Offer, (iv) amend or which imposes conditions to waive the Minimum Condition or the condition set forth in clause (b) of Annex I, (v) impose any condition or requirement on the Offer in addition to other than those set forth in Annex A hereto. The Per Share Amount shallI, subject to applicable withholding of taxes(vi) except as provided in Section 1.1(e), be net extend the Offer or (vii) otherwise amend the Offer in any manner that is adverse to the seller holder of Shares. Notwithstanding anything to the contrary in cashthis Agreement, upon 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 Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares, occurring on or after the date of this Agreement and prior to the 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 sentence shall be construed to permit the Company to take any action with respect to its securities that is not permitted by the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawnthis Agreement.
(bd) As promptly as reasonably practicable Unless extended in accordance with the terms of this Agreement, the Offer shall initially expire at midnight (New York City time) at the end of the day on the date of that is twenty (20) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended as required by or otherwise permitted by this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, any condition to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) has not been satisfied, or, where permitted by applicable Law, this Agreement and Annex I, waived by the Purchaser, the Purchaser shall file with (and Parent shall cause the Purchaser to), extend the Offer on one or more occasions, for successive periods of up to ten (10) Business Days each, the length of each such period (subject to such ten (10) Business Day maximum) to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions. In addition, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the United States Securities and Exchange Commission (the "“SEC"”) or its staff. If on or prior to any then scheduled Expiration Date, all the conditions to the Offer have been satisfied, or, where permitted by applicable Law, this Agreement and Annex I, waived by the Purchaser (other than conditions that, by their nature, are to be satisfied at the Closing), and the full amount of the Debt Financing has not been funded and will not be available to be funded at the Acceptance Time, then the Purchaser shall have the right, in its sole discretion, to extend the Offer for one (1) period of up to ten (10) Business Days, so long as no such extension would result in the Offer being extended beyond the third (3rd) Business Day immediately preceding the Outside Date. Notwithstanding anything to the contrary in this Agreement, the Purchaser shall not be required to extend the Offer beyond June 30, 2017 (the “Outside Date”). Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to ARTICLE VII hereof.
(f) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to ARTICLE VII. If this Agreement is terminated pursuant to ARTICLE VII, the Purchaser shall promptly (and in any event within 48 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to 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, the Purchaser shall file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") TO with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments amendments, supplements and supplements exhibits thereto, the "“Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (TO”), which shall include, as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3exhibits, the Offer to Purchase Purchase, a form of letter of transmittal and such other documentsa form of summary advertisement (collectively, together with all any amendments, supplements and amendments exhibits thereto, being referred to herein collectively as the "“Offer Documents"”). Gambro.
(ii) The Purchaser may, Parentin its sole discretion, provide guaranteed delivery procedures for the tender of Shares in the Offer.
(iii) The Purchaser agrees to cause the Offer Documents to be disseminated to holders of Shares, as and to the extent required by the Securities Act and the --------------- Exchange Act.
(iv) The Company shall promptly furnish to Parent and the Purchaser in writing all information concerning the Company and its Subsidiaries and stockholders that may be required by applicable securities Laws or reasonably requested by Parent or the Purchaser for inclusion in the Offer Documents.
(v) The Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct promptly any information provided by any of them it for use in the Offer Documents which Documents, if and to the extent that it shall have become false or misleadingmisleading in any material respect or as otherwise required by applicable Law, and Gambro, Parent and the Purchaser further agree to take all steps necessary agrees to cause the Schedule 14D-1 and the Schedule 13E-3 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 lawsthe Securities Act or the Exchange Act.
(vi) The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents before they are filed with the SEC, and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(vii) In addition, the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that the Purchaser or its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto.
(viii) The Company and its counsel shall be given a reasonable opportunity to review any such written responses and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(ix) Notwithstanding the foregoing, Parent and the Purchaser’s obligations pursuant to the immediately preceding three sentences shall not apply if an Adverse Recommendation Change has occurred.
Appears in 1 contract
Samples: Merger Agreement (GigPeak, Inc.)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. 2.1 Subject to the terms and conditions of this Agreement, the Offeror hereby agrees to make an offer to purchase 100% of the Shares at a price of $45 in cash per Share on the following terms and conditions:
(a) The Offeror shall mail or cause to be mailed the Offer to all holders of Shares (excluding the Offeror and its affiliates) and to all holders of Options or other rights to acquire Common Shares on or before 5:00 p.m. (Calgary Time) on February 8, 2007, or such later date as may be required for the Offeror to be provided with, and include with the Offer Documents, the valuation prepared by the Valuator and the Directors’ Circular (as hereinafter defined) which Offer shall be made in accordance with (i) applicable securities laws, regulations and rules and the policy statements, orders and rulings of Canadian, provincial and territorial securities regulatory authorities and (ii) applicable federal securities laws and rules of the United States (collectively, “Applicable Securities Laws”) and which Offer shall be subject to the conditions as described in Schedule “A” hereto and no other conditions. The making of the Offer (and the mailing of the Offer Documents) shall be conditional on the following matters:
(A) as of the date the Offer is to be made, there shall be no breach of any of the Corporation’s representations or warranties contained herein or any breach of or non-compliance with any covenant, agreement or obligation of the Corporation contained herein, which breach or non-compliance, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Corporation or on the ability of the Offeror to consummate the transactions contemplated herein; and
(B) that the directors’ circular prepared by the Board of Directors of the Corporation (the “Directors’ Circular”) shall have been made available not later than five (5) business days following the execution of this Agreement by the Corporation for review by the Offeror, and following such review, the Directors’ Circular shall have been provided to the Offeror for mailing to holders of Shares at the same time, and in the same package, as the Offer Documents and shall include a statement that, upon the unanimous recommendation of the Special Committee, the Board of Directors (A) unanimously (with the RDS Nominees and the President and Chief Executive Officer abstaining) recommends that holders of Shares (other than the Offeror and its affiliates) accept the Offer, Purchaser shall payand (B) unanimously (with the RDS Nominees and the President and Chief Executive Officer abstaining) concludes that the Offer is fair, as promptly as practicable after expiration from a financial point of view, to holders of Shares (other than the Offer, for all Shares validly tendered Offeror and not withdrawn.its affiliates);
(b) As promptly as reasonably practicable The Offer shall be open for acceptance until a time or times that is not earlier than 8:00 p.m. (Toronto time) on the date 36th day after the day that the Offer is mailed to holders of commencement Shares and to all holders of Options and other rights to acquire Common Shares (the time at which the Offer is initially scheduled to expire being referred to as its “Initial Expiry Time”), subject to the right of the Offeror in its sole discretion to extend (or further extend) the period during which Shares may be deposited under the Offer, Purchaser to comply with any legal requirements or if the conditions thereto set forth in Schedule “A” are not satisfied on or by the Initial Expiry Time and to permit, as the Offeror shall file with deem appropriate, the Securities and Exchange Commission depositing of additional Shares (such Initial Expiry Time or any extension thereof, the "SEC"“Expiry Time”)
(ic) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to The documentation constituting the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements theretoto be mailed to holders of the Shares shall include the take-over bid circular, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the purchase, related letter of ----------------- transmittal and any related summary advertisement notice of guaranteed delivery (the “Offer Documents”) and shall be prepared by the Offeror in compliance with Applicable Securities Laws; and
(d) Subject to the satisfaction or waiver of the conditions set forth in Schedule 14D-1“A” and the terms hereof, the Schedule 13E-3Offeror shall, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use soon as is practicable in the Offer Documents which shall have become false or misleading, circumstances and Gambro, Parent and Purchaser further agree to take all steps necessary to cause in any event within the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent time periods required by applicable federal securities lawsApplicable Securities Laws, accept for payment and take up and pay for all Shares deposited and not withdrawn under the Offer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 8.01 and none of the events or circumstances set forth in Annex A hereto shall have occurred or be existing, Purchaser shall agrees to, and Parent agrees to cause Purchaser to, commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial first public announcement of Purchaser's intention to commence the Offerexecution hereof. The Parent and Purchaser agree that the obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority the number of Shares validly tendered and not withdrawn prior to the expiration of the then outstanding ----------------- SharesOffer, other than combined with the Shares already owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to constitute more than 80% of the then outstanding Shares at the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. A. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; Parent and provided further Purchaser agree that no -------- ------- change may be made without the consent of the Company which decreases the price per Share payable in the Offer or Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which extends the expiration date of the Offer (except that Purchaser may extend the expiration date of the Offer (a) as required to comply with any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC") or (b) for one or more times each for an aggregate period of up to 15 days (and not to exceed 60 days from the date of commencement) for any reason other than those specified in the immediately preceding clause (a)) or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the OfferOffer (including, without limitation, the Minimum Condition), Purchaser shall agrees to, and Parent agrees to cause Purchaser to, pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly soon as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall agree that Purchaser will file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined), which shall have been provided to the Company and to which the Company shall not have reasonably objected. The Parent and Purchaser agree that the Schedule 14D-1 and the Schedule 13E-3 shall will contain or shall will 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.Purchase
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance Bidco undertakes that:
(i) without the prior agreement of an Instructing Group, (the agreement of an Instructing Group being conclusively evidenced by a written notice from the Agent to Bidco with Section 7.01 and none a copy to C.S. First Boston Limited as financial advisers to Bidco) Bidco will not:
(A) declare, decide or accept any percentage below 50 percent plus one Share for the purposes of any of the events conditions set forth out in Annex A hereto shall have occurred paragraph (a) of Appendix 1 to the Press Release;
(B) take or permit to be existing, Purchaser shall commence taken any step as a result of which the offer price under the Offer as promptly as reasonably practicable after is, or may be required to be, increased beyond the date hereof, but in no event later than five business days after level agreed between Bidco and the initial public announcement of Purchaser's intention Banks from time to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant time;
(C) issue any press release or other publicity which makes reference to the Offer shall be subject Facilities, the Arranger, the Agent or to the condition (the "Minimum Condition") that at least a majority some or all of the then outstanding ----------------- Shares, other than Shares owned beneficially Banks unless the publicity is required by law or by the Code (in which case Bidco shall notify the Agent thereof as soon a practicable upon becoming aware of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration requirement);
(ii) in all material respects relevant in the context of the Offer and also shall be the Preference Share Offer, it will comply with the Code (subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions waivers granted to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallPanel), subject to applicable withholding of taxesthe Financial Services Act 1986, be net the Companies Act 1000 xxx xll other applicxxxx xxxtutes, laws and regulations;
(iii) it will keep the Agent informed as to the seller in cash, upon the terms and subject to the conditions status of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") an progress with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments the Preference Share Offer and supplements theretoin particular will from time to time and promptly upon request, give to the "Schedule 13E-3") with respect Agent for the Banks reasonable details as to the current level of acceptances of the Offer and the Preference Share Offer, and such other matters relevant to the Offer and -------------- the other Transactions Preference Share Offer as the Agent may reasonably request. Bidco will also promptly deliver to the Agent a copy of every material certificate delivered by receiving agents to Bidco and/or its advisers pursuant to the Code.
(b) If Bidco becomes aware (whether through notice from the Agent or any Bank or otherwise) of a circumstance or event which is or could reasonably be construed to be covered by a condition of the Offer which, if not waived, would entitle Bidco (with the Panel's consent, if needed) to lapse the Offer, Bidco shall notify the Agent and the following shall apply:
(A) if Bidco wishes to waive, withdraw or agree or decide not to enforce the condition and an Instructing Group agrees, (or does not make through the Agent the statement set out in (B) below) Bidco may do so;
(B) if an Instructing Group does not so agree and states that in its opinion such circumstance or event would materially and adversely affect the ability of Bidco to comply with its material obligations under the Finance Documents, Bidco will request the Panel to agree that the Offer may lapse as a result of non-satisfaction of that condition or of the conditions as to acceptances (as hereinafter defined). The Schedule 14D-1 and set out in paragraph (a) of Appendix 1 to the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase"Press Release) and forms that such lapsing will not give rise to a breach of the related letter Code. If the Panel does not so agree, then Bidco may, without the Banks' agreement, waive, withdraw or agree to decide not to enforce such condition.
(i) In relation to each of ----------------- transmittal the conditions (c) and (d) (as set out Appendix 1 to the Press Release), Bidco shall disclose to the Agent any related summary advertisement (the Schedule 14D-1and all conditions attaching to respectively, the Schedule 13E-3, announcement by the Offer U.K. Office of Fair Trading (in the case of condition (c)) or the indication by the Director General (in the case of condition (d)).
(ii) In relation to Purchase condition (e) (as set out in such Appendix) Bidco shall disclose to the Agent the terms of all undertakings and such other documents, together with all supplements and amendments thereto, being assurances sought by the Director General as referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser therein and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected proposed 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 lawsgiven.
Appears in 1 contract
Samples: Term Loan and Revolving Facility Agreement (Calenergy Co Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none At all times prior to the end of the events set forth Certain Funds Period, TUC shall:
(i) cause Bidco, until the earlier of the date the Offer lapses or is finally closed, to comply in Annex A hereto shall have occurred or be existingall material respects with the City Code, Purchaser shall commence the Financial Services Xxx 0000 (UK) and the Companies Act and all other applicable laws and regulations relevant in the context of the Offer;
(ii) cause Bidco to provide the Administrative Agent with such information regarding the progress of the Offer as promptly as it may reasonably practicable after the date hereofrequest and, but in provided no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority breach of the then outstanding ----------------- SharesCity Code would result, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior all material written advice given to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth it in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions respect of the Offer; provided;
(iii) not cause or permit Bidco to declare the Offer unconditional at a level of acceptances below that required by Rule 10 of the City Code;
(iv) cause Bidco to ensure that at no time shall circumstances arise whereby a mandatory offer is required to be made by the terms of Rule 9 of the City Code in respect of the Target Shares;
(v) not cause or permit Bidco, -------- however, that the Minimum Condition may not be waived except with without the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases Administrative Agent (acting on the price per Share payable instructions of the Required Lenders), to waive, amend or agree or decide not to enforce, in the Offer whole or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallpart, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject Offer set out in paragraph (c) (Referral) of Appendix 1 to the terms and Offer Press Release;
(vi) not cause or permit Bidco, without the prior consent of the Administrative Agent (acting on the instructions of the Required Lenders), such consent not to be unreasonably withheld or delayed, to waive, amend (but not including extending the Offer period, which shall be at Bidco's discretion provided that the Offer is closed within the period required by paragraph (ix) below of this Section 5.14) or agree or decide not to invoke, in whole or in part, in any material respect, any of the other material conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration Offer (and the Borrowers acknowledge that the total indebtedness of the OfferTEG Group requiring to be refinanced, for all Shares validly tendered and the amount of any contingent liabilities of the TEG Group which would or might crystallize upon the Offer becoming unconditional, are material), provided that TUC shall not withdrawn.be in breach of this paragraph (vi) if it fails to cause Bidco to invoke a condition of the Offer because the Takeover Panel has directed that Bidco may not do so;
(bvii) As promptly cause Bidco to keep the Joint Lead Arrangers informed and consult with them as reasonably practicable on to:
(A) the terms of any undertaking or assurance proposed to be given by it, any of its Affiliates or any member of the TEG Group to the Director General of Electricity Supply, the Director General of Gas Supply or the Secretary of State for Trade and Industry in connection with the Offer;
(B) the terms of any modification to any of the Licenses proposed in connection with the Offer; and
(C) any terms proposed in connection with any authorization or determination necessary or appropriate in connection with the Offer;
(viii) within 15 days of the date of commencement on which acceptances of the OfferOffer are received from holders of not less than 90% of the Target Shares, Purchaser shall file with procure that a director of Bidco issues a statutory declaration pursuant to section 429(4) of the Securities Companies Act, gives notice to all remaining holders of Target Shares that it intends to acquire their Target Shares pursuant to section 429 of the Companies Act and Exchange Commission (the "SEC")cause Bidco subsequently to purchase all such Target Shares; and
(iix) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect in any event give notice to close the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements theretono less than 120 days after the Effective Date, unless the "Schedule 13E-3") with respect Required Lenders agree in their discretion to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and extend such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsperiod.
Appears in 1 contract
The Offer. (a) Provided The Offeror shall promptly publicly announce its intention to make an offer and, subject to the terms and conditions set forth below, shall make an offer (the "OFFER") to purchase all of the Shares, including all Shares issuable upon the exercise of stock options ("OPTIONS") granted pursuant to the Company's Stock Option Plan prior to the date hereof and all Shares issuable pursuant to the Convertible Debentures. The terms of the Offer shall include any amendments to, or extensions of, such Offer made in accordance with the terms of this Agreement, including, without limitation, removing or waiving any condition or extending the date by which Shares may be deposited. The Offer shall permit a Shareholder who holds Shares indirectly through a holding company (a "HOLDCO") to accept the Offer by depositing all of the shares of the Holdco (the "HOLDCO SHARES") to the Offer for consideration equal to the consideration such Shareholder would have been entitled to receive had the Shares owned by such Holdco been deposited directly under the Offer (the "HOLDCO ALTERNATIVE"), provided that the Holdco Alternative will only be available to any particular Shareholder if the terms and conditions which are set out in Schedule C are satisfied or waived.
(b) The Offeror shall offer to acquire the Shares for $4.33 per Share, in cash subject to downward adjustment if the Board of Directors declares, sets aside or pays any dividend or other distribution payable in cash, stock, property or otherwise, with respect to the Shares; which adjustment shall be equal to the amount of such dividend or other distribution.
(c) Subject to subsections 1.1(g), 1.2(b) and 1.2(d), the Offeror shall mail the Offer and accompanying take-over bid circular, related letter(s) of transmittal and notice(s) of guaranteed delivery (such documents, together with the Offer, being referred to herein as the "BID CIRCULAR") in accordance with applicable Laws to each registered Shareholder as soon as reasonably practicable and in any event not later than 11:59 p.m. (Toronto time) on July 13, 2003 ("LATEST MAILING DATE"); provided, however, that if the mailing of the Bid Circular is delayed by reason of (i) an injunction or order made by a court or regulatory authority of competent jurisdiction or (ii) the Offeror not having obtained any regulatory waiver, consent or approval which is necessary to permit the Offeror to mail the Offer then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, then the Latest Mailing Date shall be extended for a period ending on the earlier of: (i) 11:59 p.m. (Toronto time) on August 12, 2003 and (ii) the tenth business day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable.
(d) Prior to the printing of the Bid Circular, the Offeror shall provide the Company and its counsel with an opportunity to review and comment on it, recognizing that whether or not such comments are appropriate will be determined by the Offeror, acting reasonably.
(e) The Offer will be made in accordance with applicable Laws and shall expire no earlier than 12:01 a.m. (local time) on the 36th day after the day (the "MAILING DATE") that the Offer is mailed to Shareholders, subject to the right of the Offeror to extend the period during which Shares and Holdco Shares may be deposited under the Offer (as it may be amended, the "EXPIRY TIME"). The terms of the Offer shall comply with the terms of this Agreement. The Offer shall be subject only to the conditions set forth in Schedule A annexed hereto. The Offeror agrees that provided all of the conditions to the Offer set out in Schedule A hereto have been satisfied or waived by the Offeror, the Offeror shall take up and pay for all of the Shares and Holdco Shares tendered under the Offer as soon as reasonably possible and in any event not later than three business days following the time at which it becomes entitled to take up such Shares and Holdco Shares under the Offer pursuant to applicable Laws.
(f) It is understood and agreed that the Offeror may, in its sole discretion, modify or waive any term or condition of the Offer, provided that the Offeror will not, without the prior written consent of the Company, (i) increase the Minimum Tender Condition, (ii) decrease the consideration per Share, (iii) change the form of consideration payable under the Offer (other than to add additional consideration or the option of Shareholders to choose one or more alternative forms of consideration in addition to the form of consideration contemplated herein), or (iv) impose additional conditions to the Offer.
(g) The obligation of the Offeror to make the Offer by mailing the Bid Circular to Shareholders is conditional on the prior satisfaction of the following conditions, all of which conditions are included for the sole benefit of the Offeror and any or all of which may be waived by the Offeror in whole or in part in its sole discretion without prejudice to any other rights it may have under this Agreement --------- or otherwise and which shall be deemed to have been waived by the commencement of the Offer:
(i) the obligations of the Offeror hereunder shall not have been terminated in accordance with pursuant to Section 7.01 and none of the events set forth in Annex A hereto 6.1;
(ii) no circumstance, fact, change, event or occurrence shall have occurred that would render it impossible for one or more of the conditions set out on Schedule A hereto to be existingsatisfied;
(iii) the Board of Directors shall have prepared and approved in final form, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention printed for distribution to commence the Offer. The obligation of Purchaser to accept for payment Shareholders and pay for Shares tendered pursuant delivered to the Offer shall be subject to Offeror for mailing with the condition Bid Circular a directors' circular (the "Minimum ConditionDIRECTORS' CIRCULAR") ), which circular shall contain a unanimous recommendation that at least Shareholders accept the Offer and a majority copy of the then outstanding ----------------- Sharesfairness opinion of CIBC World Markets Inc. opining that the consideration offered under the Offer is fair, from a financial point of view, to Shareholders;
(iv) no cease trade order, injunction or other than prohibition at Law shall exist against the Offeror making the Offer or taking up or paying for Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, and Holdco Shares deposited under the Offer;
(v) neither the Company nor the Offeror shall have been validly tendered and not withdrawn prior received any notice (written or oral) from any Governmental Authority indicating that any School's license, permit, accreditation, approval or registration pursuant to (A) applicable vocational and/or career training legislation or (B) the expiration federal or provincial Canada student loan program, will be suspended or revoked;
(vi) the Offeror shall have received all waivers, rulings or orders necessary for the making of the Offer or to mail to Shareholders the Bid Circular from all applicable securities commissions or other securities or stock exchange regulatory authorities, including a ruling which provides that subsection 97(2) of the Securities Act (Ontario) and also shall be subject to the satisfaction equivalent provisions of the securities laws of the other conditions set forth provinces and territories of Canada are not violated by the employment arrangements proposed for Company employees;
(vii) the Company shall have complied with its obligations under this Agreement;
(viii) all representations and warranties of the Company:
(A) that are qualified by a reference to Material Adverse Effect shall be true and correct in Annex A hereto. Purchaser expressly reserves all respects at the right to waive any such condition, to increase time of the price per Share payable in the Offer, and to make any other changes in the terms and conditions making of the Offer; providedand
(B) that are not qualified by a reference to a Material Adverse Effect shall be true and correct in all respects at the time of the making of the Offer unless the failure to be true or correct has not had or would not reasonably be expected to have, -------- howevera Material Adverse Effect (and, for this purpose, any reference to "material" or other concepts of materiality in such representations and warranties shall be ignored);
(ix) there shall not have occurred or arisen (or there shall not have been generally disclosed or discovered, if not disclosed in writing to the Offeror) any change (or any condition, event or development involving a prospective change) in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding, pending or threatened litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects of the Company or any of its Subsidiaries considered on a consolidated basis which, in the sole judgment of the Offeror, individually or in the aggregate, has or may have a material adverse effect either on the value of the Company and its Subsidiaries considered on a consolidated basis or on the value of the Shares to the Offeror;
(x) the Board of Directors shall have passed and not revoked a resolution terminating all Options effective upon the take-up and payment by the Offeror of Shares under the Offer provided that at such time the Offeror has taken up and paid for, either directly or indirectly, at least 66 2/3% of the outstanding Shares on a fully-diluted basis;
(xi) the Board of Directors shall have passed and not revoked a resolution suspending the operation of the Employee Stock Purchase Plan such that no Shares shall be issued pursuant to the Employee Stock Purchase Plan while it is suspended;
(xii) the corporate governance committee of the Board of Directors shall have passed and not revoked a resolution terminating the Employee Stock Purchase Plan effective upon the take-up and payment by the Offeror of Shares under the Offer provided that at such time the Offeror has taken up and paid for, either directly or indirectly, at least 66 2/3% of the outstanding Shares on a fully-diluted basis; and
(xiii) in the event that the Minimum Condition may escrow agreement to be entered into pursuant to the indemnity agreement between Xxxxx XxXxxxxx, 1234512 Ontario Inc., Golconda Inc., the Company, the Parent and the Offeror (substantially in the form delivered to such parties) has not be waived except with been executed and delivered at the prior ------- written consent time of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number entering into of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements theretothis Agreement, the "Schedule 14D-1") with respect to parties (other than the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements theretoOfferor, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 Parent and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase"escrow agent thereunder) and forms of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, executed and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsdelivered such escrow agreement.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- nothing shall not have been terminated occurred that would result in accordance with Section 7.01 and none a failure to satisfy any of the events conditions set forth in Annex A hereto shall have occurred or be existingEXHIBIT C hereto, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, Merger Sub shall, and IR shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) promptly, but in no event later than five the tenth business days day after the date of this Agreement, an offer (the "Offer") to purchase any and all of the outstanding shares of ZT Common Stock at a price of fifteen dollars and thirty-six cents ($15.36) per share (the "Offer Price"), net to the seller in cash. The initial public announcement expiration date of Purchaser's intention to commence the OfferOffer shall be the twentieth business day from and after the date the Offer is commenced, including the date of commencement as the first business day in accordance with Rule 14d-2 under the Exchange Act (the "Initial Expiration Date"). The obligation of Purchaser Merger Sub to accept for payment payment, purchase and pay for Shares tendered shares of ZT Common Stock shall be subject, except as provided in Section 1.1(b), only to the satisfaction of the condition that a number of shares of ZT Common Stock representing not less than two-thirds of the total issued and outstanding shares of ZT Common Stock on a fully-diluted basis on the date such shares are purchased pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition") and also shall be subject to the satisfaction of the other conditions set forth in Annex A EXHIBIT C hereto. Purchaser ; provided, however, that Merger Sub expressly reserves the right to waive any such condition, of the conditions to increase the price per Share payable in the Offer, Offer and to make any other changes change in the terms and or conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallits sole discretion, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawnSection 1.1(b).
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.
Appears in 1 contract
Samples: Merger Agreement (International Rectifier Corp /De/)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 Article IX, and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition prior satisfaction or waiver (if and to the "Minimum Condition"extent that such waiver is permitted by the GRAMF) that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves II hereto and Section 4.2(c), as promptly as practicable, Holdco shall (or shall cause another direct or indirect wholly owned Subsidiary of Holdco to) file the right Offer with (i) the French Financial Market Authority (AUTORITE DES MARCHES FINANCIERS) (the "AMF") within the meaning of the General Rules of the AMF, as may be amended from time to waive time (the "GRAMF", which term shall be deemed to include any such conditionother relevant rules, to increase instructions and/or recommendations of the price per Share payable in the OfferAMF), and to make any other changes in (ii) Belgian Banking, Finance, and Insurance Commission (COMMISSION BANCAIRE, FINANCIERE, ET DES ASSURANCES) (the "CBFA"). Following approval by the AMF of the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser the Tender Offer Prospectus filed by Holdco (NOTE D'INFORMATION) and the Tender Offer Prospectus filed by Euronext (NOTE EN REPONSE), Holdco shall paycommence, within the meaning of the GRAMF and the relevant Belgian regulations, the Offer to exchange each Euronext Share for 0.98 of a share of Holdco Common Stock (the "STANDARD STOCK AMOUNT") and (euro)21.32 in cash (the "STANDARD CASH AMOUNT" and, together with the Standard Stock Amount, the "MIXED OFFER CONSIDERATION" (OFFRE MIXTE PRINCIPALE)) with an option to receive in the Offer (including in any subsequent offering period (PERIODE DE REOUVERTURE DE L'OFFRE)), in lieu of the Mixed Offer Consideration, the Stock Election Consideration (in the OFFRE D'ECHANGE SUBSIDIAIRE) or the Cash Election Consideration (in the OFFRE D'ACHAT SUBSIDIAIRE), as promptly as practicable after expiration each may be adjusted pursuant to this Section 1.
1. In the event that Holdco shall cause a Subsidiary of Holdco to file and commence the Offer, for all Shares validly tendered each reference to Holdco in this Article I and not withdrawnANNEXES II and III shall be deemed, where applicable, to refer to such Subsidiary. For the avoidance of doubt, none of the Mixed Offer Consideration, the Stock Election Consideration or the Cash Election Consideration shall be reduced as a result of the payment by Euronext of the Special Euronext Distribution.
(b) As promptly as reasonably practicable on Subject to Section 1.1(h), each Euronext Share accepted by Holdco pursuant to the date Offer (including during any subsequent offering period (PERIODE DE REOUVERTURE DE L'OFFRE)) shall be exchanged for the right to receive from Holdco the Mixed Offer Consideration; PROVIDED that Holdco shall provide the Euronext shareholders with a "mix and match election" in the Offer so that each holder of commencement of Euronext Share may elect to receive in the Offer for each Euronext Share tendered by such holder in the Offer, Purchaser shall file with in lieu of the Securities and Exchange Commission (the "SEC")Mixed Offer Consideration, either:
(i) a Tender Offer Statement on --- Schedule 14D-1 number of shares of Holdco Common Stock (together with all amendments the "STOCK ELECTION AMOUNT") equal to the sum of (A) Standard Stock Amount and supplements thereto(B) the quotient obtained by dividing the Standard Cash Amount by the Pre-Offering Stock Price (such consideration, the "Schedule 14D-1STOCK ELECTION CONSIDERATION" and persons who shall have tendered their Euronext Shares in this offer (OFFRE D'ECHANGE SUBSIDIAIRE) for the Stock Election Consideration are referred to as having made a ") with respect to the Offer and STOCK ELECTION"); or
(ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 an amount in cash (together with all amendments the "CASH ELECTION AMOUNT"), without interest, equal to the sum of (A) the Standard Cash Amount and supplements thereto(B) the product obtained by multiplying the Standard Stock Amount by the Pre-Offering Stock Price (such consideration, the "Schedule 13E-3"CASH ELECTION CONSIDERATION" and persons who shall have tendered their Euronext Shares in this offer (OFFRE D'ACHAT SUBSIDIAIRE) with respect to for the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being Cash Election Consideration are referred to herein collectively as the having made a "Offer DocumentsCASH ELECTION"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any .
(c) For purposes of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.this Section 1.1:
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as As promptly as reasonably practicable (and in any event within fifteen (15) Business Days after the date hereofof this Agreement, but in no event later than five business days after subject to compliance by the initial public announcement Company of Purchaser's intention its obligations pursuant to commence Section 1.2), the Purchaser shall (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 outstanding Shares for cash at the Offer Price. The consummation of the Offer. The , and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer (and any obligation of Parent to cause the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer), shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the condition Expiration Date that number of Shares which, together with the number of Shares (if any) then owned by Parent or any of its wholly-owned direct or indirect Subsidiaries, including the "Minimum Condition") that Purchaser, represents at least a majority of the Shares then outstanding ----------------- and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding and entitled to vote upon the adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, but not from the number of outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures (to the extent such procedures are permitted by the Purchaser) that have not yet been delivered in settlement or satisfaction of such guarantee) (collectively, the “Minimum Condition”) and (ii) the satisfaction, or waiver by the Purchaser (to the extent permitted in Annex I), of each of the other than conditions set forth in Annex I. For the purposes of determining the Minimum Condition, the “number of Shares owned beneficially by then outstanding” and “number of shares of capital stock of the Company outstanding” shall mean, without duplication, (i) the aggregate number of Shares then-outstanding, plus (ii) the aggregate number Shares subject to then-outstanding vested Company RSUs and vested Company PSUs that have not yet settled into Shares that are then-outstanding, plus (iii) the aggregate number of Shares that the Company is required to issue upon conversion, settlement or exercise of record by Gambro, Parent, Purchaser all then-outstanding Company Options for which the Company has received notices of exercise or any conversion and payment of their affiliates, shall have been validly tendered and not withdrawn the applicable aggregate exercise price prior to the expiration of the Offer and also shall for which the Company has not yet issued Shares. Other than the Minimum Condition, and subject to Annex I, the conditions to the Offer set forth in this Section 1.1 and clause (c) of the initial paragraph of Annex I are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such conditions (except if any breach of the Merger Agreement or other action or inaction by Parent or the Purchaser has been a proximate cause of or proximately resulted in the failure or the non-satisfaction of any such condition) and, subject to the other terms of this Agreement (including Annex I), may be waived by the Purchaser, in its sole discretion, in whole or in part at any time and from time to time.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by the Purchaser (to the extent permitted by Annex I), of each of the other conditions set forth in Annex A heretoI, the Purchaser shall, and Parent shall cause the Purchaser to, upon the Expiration Date, cause the Acceptance Time to occur, and the Purchaser shall, and the Parent shall cause the Purchaser to, accept for payment all Shares validly tendered and not properly withdrawn pursuant to the Offer upon the occurrence of the Acceptance Time and pay for such Shares as promptly as practicable (and in any event not more than two (2) Business Days) following the Acceptance Time. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid, without interest, subject to any applicable withholding taxes. To the extent any such amounts are so withheld and paid to the applicable Governmental Authority, such amounts shall be Table of Contents treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and Offer Price or to make any other changes in the terms and conditions of the Offer; provided, -------- however, that that, notwithstanding anything herein to the Minimum Condition may contrary, except as approved in advance by the Company in writing, the Purchaser shall not, and Parent shall cause Purchaser not be waived except with to, (i) decrease the prior ------- written consent Offer Price, (ii) change the form of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share consideration payable in the Offer or which reduces (other than adding consideration), (iii) reduce the maximum number of Shares to be purchased in the Offer Offer, (iv) amend or which imposes waive the Minimum Condition or the condition set forth in clauses (a), (b), (c)(ii), or (c)(viii) of Annex I, (v) add to or amend any of the other conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallI, subject to applicable withholding of taxes(vi) except as provided in Section 1.1(e), be net extend the Offer or (vii) otherwise amend the Offer in any manner that is adverse to the seller holder of Shares. Notwithstanding anything to the contrary in cashthis Agreement, upon 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 Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares, occurring on or after the date of this Agreement and prior to the 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 sentence shall be construed to permit the Company to take any action with respect to its securities that is not permitted by the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawnthis Agreement.
(bd) As promptly as reasonably practicable Unless extended in accordance with the terms of this Agreement, the Offer shall initially expire at midnight (New York City time) at the end of the day on the date of that is twenty (20) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended as required by or otherwise permitted by this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on the then scheduled Expiration Date, any condition to the Offer (including the Minimum Condition and the other conditions set forth in Annex I) has not been satisfied, or, where permitted by applicable Law, this Agreement and Annex I, waived by the Purchaser, the Purchaser shall file (and Parent shall cause the Purchaser to), extend the Offer for successive periods of ten (10) Business Days each in order to permit the satisfaction of such conditions until satisfied or this Agreement is terminated in accordance with its terms. In addition, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the United States Securities and Exchange Commission (the "“SEC")
(i”) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements theretoor its staff or any applicable stock exchange, including the NYSE. Notwithstanding anything to the contrary in this Agreement, the "Schedule 14D-1"Purchaser shall not be required to extend the Offer on more than two (2) with respect occasions in the event that all of the conditions to the Offer and have been satisfied or waived (iiif permitted hereunder) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 except for the Minimum Condition. Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to ARTICLE VII hereof.
(together with all amendments and supplements theretof) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to ARTICLE VII. If this Agreement is terminated pursuant to ARTICLE VII, the "Schedule 13E-3"Purchaser shall (and Parent shall cause Purchaser to) with respect promptly (and in any event within 48 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the Offer purchase of Shares in the Offer, the Purchaser shall (and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 Parent shall cause Purchaser to) promptly return, and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms cause any depositary acting on behalf of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer Purchaser to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesreturn, in each case as and accordance with applicable Law, all tendered Shares to the extent required by applicable federal securities lawsregistered holders thereof.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as As promptly as reasonably practicable after the date hereof, (but in no event later than five business days after the initial public announcement of Purchaser's intention to the execution hereof), Purchaser shall commence (within the Offer. The obligation meaning of Purchaser to accept for payment and pay for Shares tendered pursuant to Rule 14d-2 under the Offer shall be subject to the condition Securities Exchange Act of 1934, as amended (the "Minimum ConditionExchange Act")) that at least a majority the Offer to purchase for cash all of the then issued and outstanding ----------------- Sharesshares of Company Common Stock at a price of $14.77 per Share, other than Shares owned beneficially by net to the seller in cash (such price, or of record by Gambrosuch higher price per Share as may be paid in the Offer, Parentbeing referred to herein as the "Offer Price"), Purchaser or any of their affiliates, shall have been subject to there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares beneficially owned by Parent or Purchaser, represents at least 66-2/3% of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves The Offer shall remain open for tender of Shares or withdrawal of Shares previously tendered until January 7, 1997, unless previously terminated prior to such date in accordance with the right terms thereof or of this Agreement or pursuant to waive applicable law without any such condition, to increase the price per Share payable in Shares having been accepted for payment or paid for under the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount Purchaser shall, subject to applicable withholding of taxes, be net to the seller in cash, upon on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer. Subject to Offer (including without limitation the terms Minimum Condition), accept for payment and conditions of the Offer, Purchaser shall pay, pay for Shares tendered as promptly soon as practicable after it is legally permitted to do so under applicable law; PROVIDED, HOWEVER, that Purchaser will not, without the written consent of the Company, accept for payment and pay for any Shares prior to January 7, 1997. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer, for all Shares validly tendered Offer and not withdrawn.withdrawn shall be subject
(b) As promptly soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Purchaser shall file with the United States Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1") with respect to ). The Schedule 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (collectively, together with all any amendments and supplements thereto, the "Schedule 13E-3Offer Documents") with respect to the Offer and -------------- the other Transactions (as hereinafter defined)Offer. The Schedule 14D-1 Offer Documents will comply in all material respects with the provisions of applicable Federal securities laws and, on the date filed with the SEC and on the Schedule 13E-3 date first published, sent or given to the Company's shareholders, shall not contain any untrue statement of a material fact or shall incorporate by reference an offer omit to purchase (state any material fact required to be stated therein or necessary in order to make the "Offer to Purchase") and forms statements therein, in light of the related letter of ----------------- transmittal and any related summary advertisement (circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use inclusion in the Offer Documents which shall have become false or misleading, and Gambro, Documents. Each of the Parent and Purchaser further agree agrees to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected Offer Documents 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 Federal securities laws.. Each of Parent and Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect and Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given the opportunity to review the Schedule 14D-1 before it is filed with the SEC. In addition, Parent and Purchaser agree to provide the Company and its counsel
Appears in 1 contract
The Offer. (a) Provided that this Agreement nothing shall have occurred --------- shall not have been terminated that would result in accordance with Section 7.01 and none a failure to satisfy any of the events conditions set forth in Annex A hereto shall have occurred or be existingI hereto, Purchaser shall commence the Offer Merger Subsidiary shall, as promptly as reasonably practicable after the date hereof, but in no event later than five business days after following the initial public announcement of Purchaser's intention the terms of this Agreement, commence an offer (the "OFFER") to commence purchase all of the Offeroutstanding shares (the "SHARES") of common stock, $0.01 par value per share, of the Company (the "COMMON STOCK") at a price of $16.25 per Share, net to the seller in cash. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (that a number of Shares which, together with the "Minimum Condition") that Shares then owned by Buyer, represents at least a majority of the then Shares outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, on a fully diluted basis shall have been be validly tendered and not withdrawn in accordance with the terms of the Offer prior to the expiration date of the Offer and also shall be subject not withdrawn (the "MINIMUM CONDITION") and to the satisfaction of the other conditions set forth in Annex A I hereto. Purchaser Merger Subsidiary expressly reserves the right to waive the Minimum Condition or any such condition, of the other conditions to increase the price per Share payable in the Offer, Offer and to make any other changes change in the terms and or conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which changes the form of -------- consideration to be paid or decreases the price per Share payable in or the Offer or which reduces the maximum number of Shares to be purchased sought in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to I or amends the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of Offer in a manner adverse to the Offer, for all Shares validly tendered and not withdrawnCompany.
(b) As promptly soon as reasonably practicable on the date of commencement of the Offer, Purchaser Merger Subsidiary shall file with the Securities and Exchange Commission SEC (the "SEC")
(ias defined in Section 4.7) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, which will contain the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms form of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all any supplements and or amendments thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"). Gambro, Parent, Purchaser Buyer and the --------------- Company agree each agrees promptly to correct promptly any information provided by any of them it for use in the Offer Documents which if and to the extent that it shall have become false or misleading, and Gambro, Parent and Purchaser further agree misleading in any material respect. Merger Subsidiary agrees to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment on the Schedule 14D-1 prior to its being filed with the SEC.
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 Section 7.01 and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex A hereto shall have occurred or be existingI hereto, Purchaser shall commence the Offer Buyer shall, as promptly as reasonably practicable after the date hereof, but in no event later than five business days after following the initial public announcement of Purchaser's intention the terms of this Agreement, commence an offer (the "OFFER") to commence purchase all of the Offeroutstanding shares of common stock, par value $.01 per share (the "SHARES"), of the Company at a price of $23.00 per Share, net to the seller in cash. The obligation of Purchaser to accept Offer shall remain open for payment and pay for Shares tendered pursuant to the Offer at least twenty-five business days, shall be subject to the condition (that there shall have been validly tendered in accordance with the "Minimum Condition") that terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Buyer, represents at least a majority of the then Shares outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered on a fully diluted basis (the "MINIMUM CONDITION") and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A I hereto. Purchaser Buyer expressly reserves the right to waive the Minimum Condition or any such condition, of the other conditions to increase the price per Share payable in the Offer, Offer and to make any other changes change in the terms and or conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further PROVIDED that no -------- ------- change may be made which changes the form of consideration to be paid or decreases the price per Share payable in or the Offer or which reduces the maximum number of Shares to be purchased sought in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to I or which otherwise materially and adversely affects the seller in cash, upon Company or the terms and subject to the conditions holders of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawnShares.
(b) As promptly soon as reasonably practicable on the date of commencement of the Offer, Purchaser Buyer shall file with the Securities and Exchange Commission SEC (the "SEC")
(ias defined in Section 4.07) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, which will contain the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms form of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all any supplements and or amendments thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"). Gambro, Parent, Purchaser Each of Buyer and the --------------- Company agree agrees promptly to correct promptly any information provided by any of them it for use in the Offer Documents which if and to the extent that it shall have become false or misleading, and Gambro, Parent and Purchaser further agree misleading in any material respect. Buyer agrees to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment on the Schedule 14D-1 and each amendment and supplement thereto, in each case prior to the filing thereof with the SEC.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Decrane Aircraft Holdings Inc)
The Offer. (a) Provided that this Agreement --------- 12.1 Immediately after Closing, the Buyer shall not have been terminated in accordance make the Offer. Having made the Offer, the Buyer undertakes to comply with Section 7.01 and none its obligations arising under or by virtue of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but set out in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") Letter and will procure that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or if any of their affiliates, shall have been validly tendered and not withdrawn Option is exercised prior to the expiration of its exercise period, then the relevant Optionholder will be issued with B Shares so as to enable that Optionholder to benefit from the Offer before the Offer closes.
12.2 The Sellers hereby irrevocably and unconditionally undertake (and by separate undertaking Xxxxxxx Xxxxx and Xxxxxxxxxxx Xxxxx are also shall be subject to irrevocably undertake) to the satisfaction Buyer
(a) to accept or procure the acceptance of the other conditions set forth in Annex A hereto. Purchaser expressly reserves Offer (once made) not later than close of business on the right to waive any such condition, to increase the price per Share payable in the Offer, date of this agreement and to make any complete or procure the completion and delivery to the Buyer of stock forms of transfer and share certificate(s) and/or other changes in the terms and conditions document(s) of the Offer; provided, -------- however, that title or evidence of authority in respect thereof or a form of indemnity to the Minimum Condition may not be waived except with the prior ------- written consent directors of the Special CommitteeCompany in respect of any lost certificates, in each case in respect of their beneficial holdings of B Shares; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.and
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer exercise their respective options to subscribe for B Shares and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as if and to the extent required that the Buyer so requires) to accept the transfer from EBT of B Shares in satisfaction of those B Shares to which the Sellers are respectively entitled following exercise of their respective Options;
(c) to accept the Offer in relation to such B Shares as are referred to in Clause 12.2(b);
(d) except pursuant to the Offer, not to sell, transfer, charge, encumber, grant any options over or otherwise dispose of, or permit the sale, transfer, charging, encumbering, granting of any option over or other disposal of, all or any of their respective holdings of B Shares or of any interest therein;
(e) to do all such acts and things, including signing any documents, that the Buyer may reasonably require to enable the Offer to be made.
12.3 The Sellers hereby irrevocably and by applicable federal securities lawsway of security for their obligations hereunder appoint, severally, the Buyer as “Offeror” under the Offer and any director of the Offeror as their attorney to execute and deliver the form of acceptance and to sign, execute and deliver all other documents and do all such other acts and things as may be necessary for, or incidental to, their acceptance of the Offer in respect of the B Shares and/or the performance of their obligations under this undertaking on their behalf in the event of their failure to comply with any provision of this undertaking within the specific period and they irrevocably undertake to ratify such act if called upon to do so.
12.4 The above undertaking will be binding on the successors in title to substantially the whole of the undertaking of any Seller.
12.5 The Buyer and the Sellers each recognise and acknowledge that if they should fail to comply with their respective obligations and undertakings hereunder, damages may not be an adequate remedy and that an order for specific performance or other equitable remedy may be the only adequate remedy for such breach.
12.6 The Offer shall be made by the issue of the Offer Letter.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 8.01 and none of the events set forth in Annex ANNEX A hereto shall have occurred or be existing, Purchaser Merger Sub shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of PurchaserMerger Sub's intention to commence the Offer. The obligation of Purchaser Merger Sub to accept for payment and pay for Shares tendered pursuant to the Offer shall only be subject to (i) the condition (the "Minimum ConditionMINIMUM CONDITION") that at least the number of Shares that when added to the Shares already owned by Parent shall constitute a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to (ii) the satisfaction or waiver of the other conditions set forth in Annex A hereto. Purchaser ANNEX A. Merger Sub expressly reserves the right to waive any such conditioncondition (other than the Minimum Condition), to increase the price per Share payable in the Offer, Offer and to make any other changes in the terms and conditions of the Offer; providedPROVIDED, -------- howeverHOWEVER, that the Minimum Condition may not be waived except with unless Parent and Merger Sub shall have obtained the prior ------- written consent approval of the Special Committee; and provided further that Company, no -------- ------- change may be made in the Offer which (i) decreases the price per Share payable in the Offer or which Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.of
Appears in 1 contract
Samples: Agreement and Plan of Merger (Silicon Graphics Inc /Ca/)
The Offer. (a) Provided that (i) this Agreement --------- shall not have been terminated in accordance with Article VIII hereof, (ii) nothing shall have occurred that would render any of the conditions set forth in Section 7.01 1 of Annex B incapable of being satisfied and (iii) none of the events conditions set forth in Section 2 of Annex A B hereto shall have occurred or and be existingcontinuing, Parent shall cause Purchaser (and the Company shall cooperate with Parent and Purchaser subject to Section 6.02(e)) to commence (within the Offer meaning of Rule 14d-2 of the Exchange Act), as promptly as reasonably practicable after the date hereof, of this Agreement but in no event later more than five business days ten (10) Business Days thereafter, an offer to purchase all outstanding shares of Company Common Stock (including the associated rights to purchase shares of capital stock of the Company (“Rights”) issued pursuant to that certain Shareholder Rights Plan dated as of December 23, 2006, by and between the Company and Wxxxx Fargo Bank, National Association, as Rights Agent (the “Rights Plan”)) (each such share of Company Common Stock, together with the associated Rights, a “Share” and collectively, “Shares”) at a price of $19.50 per Share, net to the sellers in cash (such amount, or any greater amount per Share paid pursuant to the Offer, the “Offer Price”). Promptly after the initial public announcement later of: (i) the earliest date as of Purchaser's intention to commence the Offer. The obligation of Purchaser which Parent is permitted under applicable Law to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to and (ii) the condition (the "Minimum Condition") that at least a majority earliest date as of which each of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, Tender Offer Conditions shall have been satisfied or waived (and in any event in compliance with Rule 14e-1(c)), Purchaser shall, and Parent shall cause it to, accept for payment, and pay for (after giving effect to any required withholding Tax), all Shares validly tendered pursuant to the Offer and not withdrawn prior to (the expiration time and date of acceptance for payment, the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. “Acceptance Date”).
(b) Purchaser expressly reserves the right to waive any such conditionright, in its sole discretion, to increase the price per Share payable waive, in the Offerwhole or in part, and to make any other changes in Tender Offer Condition or modify the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with without the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in Company, Purchaser shall not (i) decrease the Offer or which reduces Price, (ii) decrease the maximum number of Shares sought to be purchased in the Offer, (iii) change the form of consideration payable in the Offer (other than by increasing the Offer Price, in the sole discretion of Purchaser), (iv) add to the Tender Offer Conditions, (v) waive or amend the Minimum Condition (as defined in Annex B), (vi) extend or otherwise change the expiration date of the Offer, other than in accordance with Section 1.01(c) or (vii) make any other change in the terms or conditions of the Offer which imposes is or would reasonably be expected to be materially adverse to any holder of Shares, it being agreed that a waiver by Purchaser of any of the conditions set forth in Annex B (other than the Minimum Condition) in whole or in part at any time and from time to time in its discretion shall not be deemed to be materially adverse to any holder of Shares.
(c) The initial expiration date of the Offer (the “Expiration Date”) shall be the 20th Business Day following the commencement of the Offer (determined using Rule 14d-2 under the Exchange Act). Without the prior written consent of the Company, Purchaser may extend the Expiration Date (which extended date shall thereupon be the Expiration Date for purposes of this Agreement) in increments of not more than ten (10) Business Days each, if at the scheduled Expiration Date any of the conditions to Purchaser’s obligation to purchase Shares are not satisfied, until such time as such conditions are satisfied or waived, provided that the Expiration Date shall not be later than the Outside Date as a result of such extension. Without limiting the right of Purchaser to extend the Offer, provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, (1) Purchaser shall extend the Expiration Date for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (2) Purchaser shall extend the Expiration Date if the conditions set forth in clauses (ii) and (iii) of Section 1 of Annex B are not satisfied as of any scheduled Expiration Date, until such time as the conditions set forth in clauses (ii) and (iii) of Section 1 of Annex B are satisfied, provided that the Expiration Date shall not be later than the Outside Date as a result of such extension. Further, provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, if any of the conditions set forth in Annex B (other than the conditions set forth in clauses (ii) and (iii) of Section 1 of Annex B) are not satisfied as of any scheduled Expiration Date, then, except to the extent that such conditions are incapable of being satisfied, at the request of the Company, Purchaser shall extend the Expiration Date for a period requested by the Company of not more than ten (10) Business Days in order to permit the satisfaction of such conditions to the Offer; provided, however, that Purchaser shall not be required to so extend the Expiration Date pursuant to this sentence on more than two occasions or if the failure to meet any of such conditions set forth in Annex B was caused by or resulted from the failure of the Company to perform in any material respect any covenant or agreement of the Company contained herein, or the material breach by the Company of any representation or warranty contained herein. In addition, Purchaser shall have the right, without the consent of the Company, to make available a subsequent offering period (within the meaning of Rule 14d-11 under the Exchange Act) if, on the then-applicable Expiration Date, the conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallB have been satisfied or waived but there shall not have been tendered that number of Shares which would equal at least ninety percent (90%) of the issued and then outstanding Shares on a “fully diluted basis” (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, subject to applicable withholding of taxes, be net to the seller in cash, upon the vesting schedule or other terms and subject to the conditions of the Offerthereof). Subject to the terms and conditions of set forth in the Offer, Purchaser shall, and Parent shall paycause it to, as promptly as practicable after expiration of the Offer, accept for payment and pay for all Shares validly tendered and not withdrawnwithdrawn 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 Exchange Act. The Offer may be terminated prior to its Expiration Date (as such expiration date may be extended and re-extended in accordance with this Agreement), but only if this Agreement is validly terminated in accordance with Section 8.01. In no event shall Purchaser extend the Offer beyond the Outside Date.
(bd) As promptly as reasonably practicable on On the date of commencement of the Offer, Parent and Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) file or cause to be filed with the SEC a Tender Offer Statement on --- Schedule 14D-1 TO (together with all amendments and supplements thereto, the "“Schedule 14D-1"TO”) with respect to the Offer which shall contain the offer to purchase and related letter of transmittal and summary advertisement and other ancillary documents and instruments required thereby pursuant to which the Offer will be made (collectively with any supplements or amendments thereto, the “Offer Documents”); (ii) cause the Offer Documents to be disseminated to holders of Shares as required by applicable Law; and (iii) 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 shall disseminate to the holders of Company Common Stock via the Offer Documents the information set forth in any such registration statement to the extent and within the time period required by Chapter 80B of the Minnesota Statutes. 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 and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel.
(e) Parent and Purchaser shall cause the Offer Documents and any amendments or supplements thereto to (i) comply in all material respects with the Exchange Act, and (ii) not contain any untrue statement of a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements theretomaterial 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 "Schedule 13E-3") circumstances under which they were made, not misleading, except that no covenant is made by Parent with respect to information supplied by the Company specifically for inclusion in the Offer Documents. Parent and -------------- Purchaser shall cause the other Transactions (as hereinafter defined). The Schedule 14D-1 information supplied by Parent and its affiliates specifically for inclusion in the Schedule 13E-3 shall contain 14D-9, the Information Statement or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms Proxy Statement, at the respective times the Schedule 14D-9, the Information Statement or the Proxy Statement are filed with the SEC or, in the case of the related letter Proxy Statement, at the time of ----------------- transmittal the Special Meeting, 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. Parent and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, Purchaser shall cause the Offer to Purchase and such other documentsbe conducted in compliance in all material respects with the Exchange Act.
(f) If at any time prior to the Effective Time, together with all supplements and amendments theretoany information relating to the Offer, being referred to herein collectively as the "Offer Documents"). GambroMerger, the Company, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by or any of them for use their respective Affiliates, directors or officers, should be discovered by the Company or Purchaser which should be set forth in an amendment or supplement to the Offer Documents so that 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 shall have become false or they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to an appropriate amendment or supplement describing such information shall be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe Company Shareholders, in each case as and to the extent required by applicable federal securities lawsLaw or any applicable rule or regulation of any stock exchange. Parent and Purchaser agree to provide the Company with (i) any comments or other communications, whether written or oral, that may be received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof and prior to responding thereto and (ii) a reasonable opportunity to provide comments on that response (to which reasonable and good faith consideration shall be given).
(g) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Shares such amounts as Purchaser is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate Taxing authority by Purchaser, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect of which such deduction and withholding was made by Purchaser.
(h) 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.
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existingArticle VIII, Purchaser shall commence the Offer as promptly as reasonably practicable (and in any event on or before September 18, 2015) after the date hereof, but in no event later than five business days after Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence, within the initial public announcement meaning of Purchaser's intention Rule 14d-2 under the Exchange Act, the Offer to commence purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of the Offer. The , and the obligation of Purchaser Acquisition Sub to accept for payment and pay for Shares any shares of Common Stock tendered pursuant to the Offer, shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Common Stock (if any) then owned by Parent or its subsidiaries, represents a majority of the shares of Common Stock then outstanding (determined on a fully diluted basis as described below) (collectively, the "Minimum Condition"); (ii) this Agreement not having been terminated in accordance with its terms (the "Termination Condition"); and (iii) the satisfaction, or waiver by Parent or Acquisition Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the "Offer Conditions"). For purposes of determining whether the Minimum Condition has been satisfied, the number of shares of Common Stock outstanding on a fully diluted basis shall be the number of shares of Common Stock issued and outstanding plus the number of shares of Common Stock which the Company would be required to issue pursuant to any then outstanding warrants, options, benefit plans or obligations or securities convertible or exchangeable into shares of Common Stock or otherwise, but only to the extent so exercisable, convertible or exchangeable prior to consummation of the Merger or exercisable, convertible or exchangeable as a result of the consummation of the Offer or the Merger.
(b) Subject to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Acquisition Sub, of the other Offer Conditions, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer on or promptly after the applicable Expiration Date. Subject to Section 3.7, the Offer Price payable in respect of each share of Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be paid net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawnwithout interest.
(bc) As promptly as reasonably practicable on the date The Offer shall be made by means of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") that describes the terms and forms conditions of the related letter Offer in accordance with this Agreement, including the Offer Conditions. Unless previously approved by the Company in writing, Parent and Acquisition Sub shall not: (i) decrease the Offer Price, (ii) change the form of ----------------- transmittal and any related summary advertisement consideration payable in the Offer, (iii) change the Schedule 14D-1number of shares of Common Stock to be purchased in the Offer, (iv) amend or waive the Minimum Condition, the Schedule 13E-3Termination Condition or the conditions set forth in clauses (b) or (c)(i) of Annex I, (v) add any condition to the Offer or any term that is adverse to the holders of Common Stock, (vi) extend the expiration of the Offer except as required or permitted by this Section 2.1, (vii) provide for a "subsequent offering period" (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Common Stock.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer, as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, the "Initial Expiration Date") or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to Purchase which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the "Expiration Date").
(e) If as of any then scheduled Expiration Date, any Offer Condition has not been satisfied or, to the extent waivable by Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such other documentslonger period of up to twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in order to permit the satisfaction of the Offer Conditions; provided, however, that Acquisition Sub shall not be required to extend the Offer beyond March 3, 2016 (the "Outside Date"), unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 8.1(b), and shall not extend the Offer beyond the Outside Date without the Company's consent. In addition, Acquisition Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or the NYSE; provided, however, that Acquisition Sub shall not be required to extend the Offer beyond the Outside Date, unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 8.1(b), and shall not extend the Offer beyond the Outside Date without the Company's consent.
(f) Acquisition Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly terminate the Offer and shall not acquire the shares of Common Stock pursuant thereto. If the Offer is terminated by Acquisition Sub, or this Agreement is terminated prior to the Acceptance Time, Acquisition Sub shall promptly return, and shall cause any depositary acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Common Stock that have not then been purchased in the Offer to the registered holders thereof.
(g) As soon as practicable on the date of the commencement of the Offer, Parent and Acquisition Sub shall:
(i) file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and amendments exhibits thereto, being referred to herein collectively as the "Offer DocumentsSchedule TO"). Gambro;
(ii) deliver a copy of the Schedule TO, Parentincluding all exhibits thereto, Purchaser to the Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
(iii) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail a copy of the --------------- Company agree Schedule TO, to correct promptly any information provided by any of them for use the NYSE in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and
(iv) cause the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to all holders of Shares, in each case shares of Common Stock as and to the extent required by all applicable federal securities lawsLaws, including the Exchange Act.
(h) The Schedule TO shall include as exhibits, the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, and a form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, being referred to herein as the "Offer
Appears in 1 contract
The Offer. (ai) Provided ensure that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; Press Release and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces Document comply in all material respects with all applicable laws and regulations and the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms Code and subject to the conditions of the Offer. Subject to that the terms and conditions of the Offer, Purchaser Offer Document are consistent in all material respects with the terms of the Press Release;
(ii) not to issue the Press Release or any press announcements relating to the Offer save as required by the Panel or London Stock Exchange Limited without the approval of the Agent (such approval not to be unreasonably withheld or delayed) and to keep the Agent advised of the progress of the Offer and of all material matters affecting or reasonably likely to affect the interests of the Banks arising in connection with the Offer and the Principal Borrower shall payprovide the Agent with any information and copies of professional advice received, as promptly as practicable after expiration the Agent may reasonably request;
(iii) disclose to the Agent all information which has come to its attention which is relevant to any decision whether or not to waive (or to consent to the waiver of) any condition of the Offer;
(iv) promptly deliver to the Agent copies of the Offer Document and press announcements made by or on behalf of the Principal Borrower in relation to the Offer, all written public statements made by or on behalf of Target in response to or otherwise commenting on the Offer, and other public documents issued by the Panel on Takeovers and Mergers, the Office of Fair Trading or the Competition Commission or any other regulatory authority in -------------------------------------------------------------------------------- 64 relation to the Offer, the Offer Document or the transactions contemplated herein or therein;
(v) ensure that it shall not and shall use its best endeavours to procure that no person acting in concert with it (as defined in the Code) shall become obliged to make an offer to the shareholders of Target under Rule 9 of the Code, and ensure that neither it nor persons acting in concert with it acquire any shares in Target at a price above the Offer price which may result in an obligation to increase the Offer price;
(vi) ensure that at all times all laws and directives applicable in relation the Offer or any documents connected thereto are complied with and that, as and when necessary all consents from all governmental and other regulatory authorities required in connection therewith (including (without limitation), the Financial Services Xxx 0000, applicable rules of any self-regulatory organisation deriving authority from the Securities and Investments Board or the Financial Services Authority and the rules of London Stock Exchange) are obtained, maintained and/or renewed
(vii) subject to compliance by the Banks with their obligations pursuant to the terms of this Agreement ensure that all its obligations pursuant to the Offer are complied with and performed, use all reasonable endeavours to ensure that the conditions attached to the Offer (save for those that are waived with the consent of the Agent) are satisfied as soon as reasonably practicable and declare the Offer unconditional in all respects immediately such conditions are satisfied (or, with the consent of the Agent, waived as aforesaid);
(viii) after the Relevant Date use its best endeavours to acquire all of the issued share capital of Target as soon as reasonably practicable either pursuant to or otherwise on the same terms as the terms of the Offer;
(ix) promptly and in any event no later than 20 Business Days after unconditionally acquiring 90% of the Target Shares validly tendered the subject of the Offer serve notices under Section 429(2) of the Companies Act 1985 (in respect of acquiring minority shareholdings). Without prejudice to the Principal Borrower's obligations under this covenant, if the Principal Borrower (or the Receiving Bank on its behalf) shall not have sent out notices under Section 429(2) of the Companies Xxx 0000 within 20 Business Days of being entitled to do so, the Agent shall be entitled to do so on the Principal Borrower's behalf and the Principal Borrower hereby irrevocably appoints the Agent as its agent to take all necessary action to do so;
(x) within seven days of the date on which acceptances of the Offer are received from holders of not withdrawnless than 90% of the Target shares to which the offer relates, or if earlier, 120 days after the date on which the Offer Document is posted give notice to close the Offer in accordance with the Code PROVIDED THAT the Offer may be kept open during the period required to acquire shares in Target under Section 430 Companies Act 1985 following the service of valid notices under Section 429(2) of the Companies Xxx 0000.
(bxi) As promptly as reasonably practicable immediately on the date acquisition by it of commencement any of the Target Shares (whether or not pursuant to the Offer, Purchaser shall file with ) procure the Securities delivery to the Security Trustee of all -------------------------------------------------------------------------------- 65 copies of receipts and Exchange Commission acknowledgements (whether or not documents of title) and all documents of title in respect of such Target Shares and give to the "SEC")Receiving Bank irrevocable instructions accordingly;
(ixii) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements theretoensure that, without the prior written consent of the Agent, the "Schedule 14D-1") with respect Principal Borrower shall not make any acquisition of Target Shares prior to the Offer and Document being posted; and
(iixiii) a Rule 13e-3 -------------- Transaction Statement not without the consent of the Agent (acting on Schedule 13E-3 the instructions of the Banks) waive or amend any conditions of the Offer or (together with all amendments and supplements thereto, unless the "Schedule 13E-3"Offer shall have become unconditional) with respect extend (prior to the Offer and -------------- becoming unconditional) the other Transactions (as hereinafter defined)Offer beyond 81 days from the date when the Offer is posted. The Schedule 14D-1 and the Schedule 13E-3 shall contain In giving or shall incorporate by reference an offer withholding its consent to purchase (the "Offer to Purchase") and forms any waiver or amendment of any conditions of the related letter Offer the Agent will treat itself as being bound by Rule 13 of ----------------- transmittal the City Code of Takeovers and any related summary advertisement (Mergers as if it were the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase Principal Borrower and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and subject to the extent required by applicable federal securities lawsjurisdiction of the Takeover Panel.
Appears in 1 contract
Samples: Facilities Agreement (Ddi Capital Corp/Dynamic Details Inc)
The Offer. (a) Provided Subject only to any Laws or Orders preventing commencement of the Offer, provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 ARTICLE 8 hereof and none of that the events Company complies with its covenants set forth in Annex A hereto shall have occurred or be existingthis Agreement, Purchaser shall commence the Offer then Acquisition Corp. shall, as promptly as reasonably practicable practicable, but not later than the tenth (10th) Business Day after the date hereofhereof (unless due to a Force Majeure Event), but commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) an offer (the "OFFER") to purchase all of the Common Shares at a price of $9.60 per share in no event later than five business days after the initial public announcement of Purchaser's intention to commence cash (such price, or such higher price per Common Share as may be paid in the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to , the Offer shall be "OFFER PRICE"), subject to the condition (that the "Minimum Condition") that at least a majority holders of the then outstanding ----------------- Shares, other than Common Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer a number of Common Shares which, together with the Common Shares beneficially owned by Parent or Acquisition Corp., represents at least 51% of the Common Shares determined on a Fully-Diluted Basis (the "MINIMUM CONDITION") and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves Subject to the right to waive any such condition, to increase prior satisfaction of the price per Share payable Minimum Condition and the prior satisfaction (or waiver in writing by Acquisition Corp.) of the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallA, subject Acquisition Corp. shall use reasonable best efforts to applicable withholding of taxes, be net to consummate the seller Offer in cash, upon the accordance with its terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, accept for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.payment and
Appears in 1 contract
Samples: Acquisition Agreement (Prentice Capital Management, LP)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none 8.01 hereof, as promptly as practicable (but in any event within five business days of the events date of this Agreement), the Purchaser shall cause the Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase all outstanding shares of Common Stock (including scrip) and Preferred Stock not owned by the Purchaser or the Sub at a price of $0.60 per share of Common Stock (including scrip), net to the seller in cash and $2.50 per share of Preferred Stock, net to the seller in cash, which offer shall remain open for at least 20 business days (the "Offer") and, subject to the conditions of the Offer set forth in Annex Exhibit A hereto hereto, shall have occurred use its best efforts to consummate the Offer, including, if necessary, conversion of convertible loans including a $3,500,000 credit facility and options outstanding into Common Stock or be existingPreferred Stock of the Company, Purchaser shall commence as the Offer as promptly as reasonably practicable after the date hereofcase may be, but in no event later than five business days after the initial public announcement of Purchaser's intention order to commence consummate the Offer. The obligation obligations of the Purchaser and the Sub to consummate the Offer, to accept for payment and to pay for Shares any shares of Common Stock and Preferred Stock tendered shall be subject only to those conditions set forth in Exhibit A hereto.
(b) Neither the Purchaser nor the Sub will, without the prior written consent of the Board of Directors of the Company, decrease the amount or change the form of the consideration payable in the Offer, decrease the number of shares of Common Stock or Preferred Stock sought pursuant to the Offer shall be subject Offer, change the conditions to the Offer, impose additional conditions or terms to the Offer, amend or waive the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been there be validly tendered and not properly withdrawn prior to the expiration of the Offer a number of shares of Common Stock and also shall be subject Preferred Stock which when added to the satisfaction number of shares of Common Stock and Preferred Stock owned by the Purchaser and its affiliates constitutes at least two-thirds of the other then outstanding shares of Common Stock and two- thirds of the then outstanding shares of Preferred Stock, respectively, on a fully diluted basis, or amend any term of the Offer in any manner adverse to holders of shares of Common Stock or Preferred Stock. Assuming the prior satisfaction or waiver of the conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, the Purchaser covenants and agrees to make any other changes accept for payment and pay for, in accordance with the terms of the Offer, shares of Common Stock and Preferred Stock tendered pursuant to the Offer as soon as it is permitted to do so under applicable Law, provided that the Purchaser and the Sub shall have the right, upon consultation with the Company, to extend the Offer (if without such extension the Purchaser would be unable to consummate the Offer) to a date not later than the 35th business day following the commencement of the Offer or for such longer period as may be required by Law.
(c) Notwithstanding anything to the contrary in this Agreement, the Purchaser and the Sub further agree that, subject to the terms and conditions of this Agreement, in the event that the conditions to the Offer set forth in paragraphs (a) or (b) of Exhibit A hereto shall occur or exist (and shall not have been waived), the Sub shall, at the Company's request, extend the Offer to a date not later than the 40th business day following the commencement of the Offer; provided, -------- however, that if the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those condition set forth in Annex paragraph (d)(i) of Exhibit A hereto. The Per Share Amount shall not have been satisfied, the Purchaser and the Sub shall, subject if reasonably requested by the Company, extend the Offer for five business days to applicable withholding of taxes, be net enable the Company to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawncure such breach.
(bd) As promptly soon as reasonably practicable on or before the date of commencement of the Offer, but not later than five business days after the execution of this Agreement, the Purchaser and the Sub shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, which will contain the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms form of the related letter of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all any supplements and or amendments thereto, being referred to herein collectively as the "Offer Documents"). GambroThe Offer Documents will comply in all material respects with the provisions of applicable federal securities Laws and, Parenton the date filed with the SEC and on the date first published, sent or given to the holders of the Common Stock and Preferred Stock of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Purchaser or the Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. The Purchaser, the Sub and the --------------- Company agree each agrees promptly to correct promptly any information provided by any of them it for use in the Offer Documents which if and to the extent that it shall be discovered to have been or to have become false or misleading, misleading in any material respect and Gambro, Parent the Purchaser and Purchaser the Sub each further agree agrees to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 Offer Documents as so corrected 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 Preferred Stock of the Company, in each case as and to the extent required by applicable federal securities lawsLaws. The Purchaser and the Sub agree to provide the Company and its counsel in writing with any comments the Purchaser, the 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.
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 Section 7.01 and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex A hereto shall have occurred or be existingI hereto, Purchaser shall commence the Offer as promptly as reasonably practicable and in any event within ten days after the date hereofhereof (or such later date as the parties may mutually agree in writing), but in no event later than five business days after Merger Subsidiary shall commence (within the initial public announcement meaning of Purchaser's intention to commence Rule 14d-2 under the 0000 Xxx) the Offer. The Merger Subsidiary’s obligation of Purchaser to accept for payment and pay for any Company Shares tendered pursuant to in the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the "Minimum Condition") that Company Shares then directly or indirectly owned by Parent, represents at least a majority of the all Company Shares then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered (the “Minimum Condition”) and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser I. Merger Subsidiary expressly reserves the right to waive any such condition, of the conditions to increase the price per Share payable in the Offer, Offer and to make any other changes change in the terms and of or conditions of to the Offer; providedprovided that unless otherwise provided by this Agreement or previously approved by the Company in writing, -------- however, that (i) the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that waived, (ii) no -------- ------- change may be made which that changes the form of consideration to be paid pursuant to the Offer, decreases the price per Share payable Offer Price or the number of Company Shares sought in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallI, subject to applicable withholding of taxes, be net or amends the conditions set forth in Annex I in any manner materially adverse to the seller holders of Company Shares, and (iii) the Offer may not be extended except as set forth in cashthis Section 2.01(a). Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the 0000 Xxx) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not have been satisfied or waived, from time to time, until the earliest to occur of (x) the satisfaction or waiver of such conditions and (y) the End Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law; provided that Merger Subsidiary shall not be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, and upon the terms and subject to the conditions of the Offer. Subject , Merger Subsidiary shall accept for payment and pay for (A) as promptly as practicable, all Company Shares validly tendered and not withdrawn pursuant to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after the final expiration of the Offer, for and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer Price payable in respect of each Company Share validly tendered and not withdrawnwithdrawn 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) As promptly soon as reasonably practicable on the date of commencement of the Offer, Purchaser Parent and Merger Subsidiary shall (i) file with the Securities and Exchange Commission (the "SEC")
(i) SEC a Tender Offer Statement on --- Schedule 14D-1 TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the "“Schedule 14D-1"TO”) with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (that shall include as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain exhibits or shall incorporate incorporated 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 14D-1, the Schedule 13E-3thereto, the Offer to Purchase and such other documentsforms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with all any amendments or supplements and amendments thereto, being referred to herein collectively as the "“Offer Documents"”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares. Gambro, The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Purchaser Merger Subsidiary and the --------------- Company agree agrees promptly to correct promptly any information provided by any of them it for use in the Schedule TO and the Offer Documents which if and to the extent that such information shall have become false or misleading, and Gambro, misleading in any material respect. Parent and Purchaser further Merger Subsidiary agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, 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 (B) 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.
Appears in 1 contract
The Offer. As regards the Offer:
(a) Provided that this Agreement --------- shall not have been terminated in accordance the Company shall:
(i) provide the Agent with Section 7.01 and none a copy of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer Press Release as promptly soon as reasonably practicable after its release;
(ii) post the date hereof, but in no event later than five business Offer Document to holders of the Target Shares within 28 days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to date on which the Offer shall be subject to Press Release is issued (or such other longer period as the condition Panel may permit);
(the "Minimum Condition"iii) ensure that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer Press Release and also shall be subject to Offer Document contain all the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the material terms and conditions of the Offer; provided, -------- however, and
(iv) ensure that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable Offer Document corresponds in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject all material respects to the terms and conditions of the Offer, Purchaser shall payOffer as contained in the Offer Press Release (save for such changes as may be required by the Panel or which may be necessary to ensure compliance with the Code);
(v) use all reasonable endeavours to ensure that, as promptly soon as reasonably practicable after expiration the Unconditional Date where acceptances of the Offer have been received from holders of at least 90% of the Target Shares to which the Offer relates (as that expression is construed in accordance with Section 979 of the Companies Act 2006) and, in the case where the Target Shares to which the Offer relates are voting shares (as that expression is construed in accordance with Section 979 of the Companies Act 2006), acceptances have been received from holders of at least 90% of the voting rights carried by such Target Shares, the Compulsory Acquisition Procedure is implemented in respect of the holders of those Target Shares who have yet to accept the Offer, for all Shares validly tendered and not withdrawn.;
(b) As promptly as reasonably practicable on the date Company shall not without the consent of commencement all of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")Lenders:
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements theretoamend or vary, the "Schedule 14D-1") with respect to in whole or in part, any material term or condition of the Offer and in any respect
(ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 waive, withdraw, decide not to or fail to enforce, in whole or in part, any material term or condition of the Offer; or
(together with all amendments and supplements theretoiii) declare, the "Schedule 13E-3") with respect to accept or treat as satisfied any condition of the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain where it is not actually satisfied 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shareshas not been complied with, in each case other than (1) as and to the extent required by the Code or the Panel or any applicable federal securities lawslaw, regulation or regulatory body or (2) in respect of the waiver of any Condition which the Company determines (acting on the advice of its legal advisers) that it is not entitled to invoke pursuant to Rule 13.5(a) of the Code. Notwithstanding the above it is agreed that Lenders consent is not required to any of the following: (A) if the consideration payable under the Offer is increased and such increase is funded from a Permitted Transaction under paragraph (b) of that definition; or (B) if the consideration is reduced; or (C) if the threshold for acceptance of the Offer is waived or reduced.
Appears in 1 contract
Samples: Backstop Facility Agreement
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none no event shall have occurred and no circumstance shall exist which would result in the occurrence of any of the events set forth in Annex A hereto shall have occurred or be existing(the "COMMENCEMENT CONDITIONS"), Purchaser shall shall, in accordance with the applicable provisions of the Dutch Merger Code and the rules and regulations of the Amsterdam Stock Exchange (the "ASE") and otherwise in accordance with applicable Law (as defined in Section 7.11(d)), commence the Offer not later than the fifth Business Day (as promptly as reasonably practicable defined in Section 7.11(a)) (the "COMMENCEMENT DATE") after the date hereofRegistration Statement (as defined in Section ) is declared effective pursuant to the Securities Act of 1933, but in no event later than five business days after as amended (the initial public announcement of Purchaser's intention to commence "SECURITIES ACT"), by the OfferSecurities and Exchange Commission (the "SEC"). The obligation of Purchaser to accept for payment and pay for Company Shares properly tendered pursuant to the Offer (the "TENDERED SHARES") shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject only to the satisfaction or waiver by Purchaser of the other conditions set forth in Annex A heretoB hereto (the "OFFER CONDITIONS"). Purchaser expressly reserves the right right, in its sole discretion (subject to Section 6.2(b)), to waive any such condition, to increase the price per Share payable in the Offer, Commencement Condition or Offer Condition and to make any other changes in the terms and conditions of the OfferOffer (or to extend the Offer beyond a scheduled Expiration Date (as defined in Section 1.3) if any Offer Conditions shall not be satisfied); provided, -------- howeverthat, that unless previously approved by the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; Company and provided further that Stockholder in writing, no -------- ------- change may be made which increases the Minimum Condition (as defined in Annex B hereto), decreases the price per Share share payable in the Offer, changes the form of consideration payable in the Offer or which (other than by adding consideration), reduces the maximum number of Company Shares to be purchased in the Offer, or amends the terms of the Offer or which Offer Conditions or imposes conditions or terms to the Offer in addition to those set forth herein which, in Annex A heretoany such case, are adverse to holders of the Company Shares or make the likelihood of the Offer succeeding more remote in any material respect. The Per Share Amount Purchaser agrees that, in the event that it is unable to consummate the Offer on the initial scheduled Expiration Date due to the failure of the Offer Conditions to be satisfied or waived, it shall, subject unless this Agreement is terminated pursuant to applicable withholding of taxesSection , be net extend the Offer and set a subsequent scheduled Expiration Date, and shall continue to so extend the seller Offer and set subsequent scheduled Expiration Dates, until the Termination Date (as defined in cash, upon the terms and subject to the conditions of the OfferSection 7.11(j)). Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
agrees that (i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to initial scheduled Expiration Date of the Offer shall be not later than the earlier of (x) 60 Business Days following the Commencement Date and (y) the date on which Purchaser reasonably believes that all Offer Conditions (other than the Minimum Condition) will be satisfied or waived (which date may not be fewer than 20 Business Days following the Commencement Date) and (ii) each subsequent scheduled Expiration Date shall be not later than the earlier of (x) 20 Business Days following the previous scheduled Expiration Date, (y) the date on which Purchaser reasonably believes that all Offer Conditions (other than the Minimum Condition) will be satisfied or waived and (z) the Termination Date. To the maximum extent permitted by the Laws of The Netherlands ("DUTCH LAW"), including the Dutch Merger Code, and by the rules and regulations of the ASE, it is agreed that the Offer Conditions are for the benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to 10 3 any such condition (except for any action or inaction by Purchaser constituting a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 breach of this Agreement) and, except as provided in Section 6.2(b), may be waived by Purchaser, in whole or in part, at any time and from time to time, in its sole discretion. Purchaser may, at any time, transfer or assign to one or more Subsidiaries of Purchaser (together with all amendments and supplements theretoorganized or incorporated under the Laws of Canada, the "Schedule 13E-3") with respect to United States, The Netherlands or any other jurisdiction, provided, that such other jurisdiction would not impose a withholding tax on the payment of the Offer and -------------- the other Transactions Consideration (as hereinafter defineddefined in Section 1.2). The Schedule 14D-1 and ) the Schedule 13E-3 shall contain or shall incorporate by reference an offer right to purchase (the "Offer to Purchase") and forms all or any portion of the related letter Tendered Shares, but any such transfer or assignment shall not relieve Purchaser of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, its obligations under the Offer or prejudice the rights of tendering shareholders to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as receive payment for the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them Tendered Shares accepted for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawspayment.
Appears in 1 contract
Samples: Offer Agreement (Seagram Co LTD)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 Article VIII hereof, Parent shall cause Merger Sub to, and none Merger Sub shall, amend the Pending Offer to reflect the execution of this Agreement and the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer terms hereof as promptly as reasonably practicable after the date hereof, of this Agreement (but in no event later than five business days after the initial public announcement fifth (5th) Business Day following the date of Purchaser's intention this Agreement). The date on which Merger Sub amends the Pending Offer is referred to commence in this Agreement as the Offer. “Offer Amendment Date.”
(b) The obligation of Purchaser Merger Sub to accept for payment (and pay the obligation of Parent to cause Merger Sub to accept for payment) Shares and associated Rights validly tendered (and not withdrawn) pursuant to the Offer shall only be subject to (i) the condition (that there shall be validly tendered in accordance with the "Minimum Condition") that at least a majority terms of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered Offer (and not withdrawn withdrawn) prior to the expiration Expiration Date a number of Shares that, together with any Shares owned by Parent, Holding or Merger Sub immediately prior to the acceptance for payment of Shares and associated Rights pursuant to the Offer or with respect to which Parent, Holding or Merger Sub otherwise has, directly or indirectly, sole voting power, represents more than 50% of the Offer Adjusted Outstanding Share Number (as defined below) at the Expiration Date (the “Minimum Condition”) and also shall be subject to (ii) the satisfaction or waiver by Parent of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.in
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as As promptly as reasonably practicable (and in any event within fifteen (15) Business Days after the date hereofof this Agreement, but in no event later than five business days after subject to compliance by the initial public announcement Company of Purchaser's intention its obligations pursuant to commence Section 1.2), the Purchaser shall (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 outstanding Shares for cash at the Offer Price. The consummation of the Offer. The , and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer (and any obligation of Parent to cause the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer), shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the condition Expiration Date that number of Shares which, together with the number of Shares (if any) then owned by Parent or any of its wholly-owned direct or indirect Subsidiaries, including the "Minimum Condition") that Purchaser, represents at least a majority of the Shares then outstanding ----------------- and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding and entitled to vote upon the adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, but not from the number of outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures (to the extent such procedures are permitted by the Purchaser) that have not yet been delivered in settlement or satisfaction of such guarantee) (collectively, the “Minimum Condition”) and (ii) the satisfaction, or waiver by the Purchaser (to the extent permitted in Annex I), of each of the other than conditions set forth in Annex I. For the purposes of determining the Minimum Condition, the “number of Shares owned beneficially by then outstanding” and “number of shares of capital stock of the Company outstanding” shall mean, without duplication, (i) the aggregate number of Shares then-outstanding, plus (ii) the aggregate number Shares subject to then-outstanding vested Company RSUs and vested Company PSUs that have not yet settled into Shares that are then-outstanding, plus (iii) the aggregate number of Shares that the Company is required to issue upon conversion, settlement or exercise of record by Gambro, Parent, Purchaser all then-outstanding Company Options for which the Company has received notices of exercise or any conversion and payment of their affiliates, shall have been validly tendered and not withdrawn the applicable aggregate exercise price prior to the expiration of the Offer and also shall for which the Company has not yet issued Shares. Other than the Minimum Condition, and subject to Annex I, the conditions to the Offer set forth in this Section 1.1 and clause (c) of the initial paragraph of Annex I are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such conditions (except if any breach of the Merger Agreement or other action or inaction by Parent or the Purchaser has been a proximate cause of or proximately resulted in the failure or the non-satisfaction of any such condition) and, subject to the other terms of this Agreement (including Annex I), may be waived by the Purchaser, in its sole discretion, in whole or in part at any time and from time to time.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by the Purchaser (to the extent permitted by Annex I), of each of the other conditions set forth in Annex A heretoI, the Purchaser shall, and Parent shall cause the Purchaser to, upon the Expiration Date, cause the Acceptance Time to occur, and the Purchaser shall, and the Parent shall cause the Purchaser to, accept for payment all Shares validly tendered and not properly withdrawn pursuant to the Offer upon the occurrence of the Acceptance Time and pay for such Shares as promptly as practicable (and in any event not more than two (2) Business Days) following the Acceptance Time. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid, without interest, subject to any applicable withholding taxes. To the extent any such amounts are so withheld and paid to the applicable Governmental Authority, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and Offer Price or to make any other changes in the terms and conditions of the Offer; provided, -------- however, that that, notwithstanding anything herein to the Minimum Condition may contrary, except as approved in advance by the Company in writing, the Purchaser shall not, and Parent shall cause Purchaser not be waived except with to, (i) decrease the prior ------- written consent Offer Price, (ii) change the form of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share consideration payable in the Offer or which reduces (other than adding consideration), (iii) reduce the maximum number of Shares to be purchased in the Offer Offer, (iv) amend or which imposes waive the Minimum Condition or the condition set forth in clauses (a), (b), (c)(ii), or (c)(viii) of Annex I, (v) add to or amend any of the other conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shallI, subject to applicable withholding of taxes(vi) except as provided in Section 1.1(e), be net extend the Offer or (vii) otherwise amend the Offer in any manner that is adverse to the seller holder of Shares. Notwithstanding anything to the contrary in cashthis Agreement, upon 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 Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares, occurring on or after the date of this Agreement and prior to the 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 sentence shall be construed to permit the Company to take any action with respect to its securities that is not permitted by the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawnthis Agreement.
(bd) As promptly as reasonably practicable Unless extended in accordance with the terms of this Agreement, the Offer shall initially expire at midnight (New York City time) at the end of the day on the date of that is twenty (20) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended as required by or otherwise permitted by this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on the then scheduled Expiration Date, any condition to the Offer (including the Minimum Condition and the other conditions set forth in Annex I) has not been satisfied, or, where permitted by applicable Law, this Agreement and Annex I, waived by the Purchaser, the Purchaser shall file (and Parent shall cause the Purchaser to), extend the Offer for successive periods of ten (10) Business Days each in order to permit the satisfaction of such conditions until satisfied or this Agreement is terminated in accordance with its terms. In addition, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the United States Securities and Exchange Commission (the "“SEC"”) or its staff or any applicable stock exchange, including the NYSE. Notwithstanding anything to the contrary in this Agreement, the Purchaser shall not be required to extend the Offer on more than two (2) occasions in the event that all of the conditions to the Offer have been satisfied or waived (if permitted hereunder) except for the Minimum Condition. Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to ARTICLE VII hereof.
(f) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to ARTICLE VII. If this Agreement is terminated pursuant to ARTICLE VII, the Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within 48 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, the Purchaser shall (and Parent shall cause Purchaser to) promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(g) As soon as practicable on the date of the commencement of the Offer, the Purchaser shall (i) prepare and file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") TO with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments amendments, supplements and supplements exhibits thereto, the "“Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (TO”), which shall include, as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain 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 14D-1, the Schedule 13E-3exhibits, the Offer to Purchase Purchase, a form of letter of transmittal and such other documentsa form of summary advertisement (collectively, together with all any amendments, supplements and amendments exhibits thereto, being referred to herein collectively as the "“Offer Documents"”), (ii) deliver a copy of the Schedule TO, to the Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act, and (iii) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail a copy of the Schedule TO, to NYSE, in accordance with Rule 14d-3(a) promulgated under the Exchange Act. GambroThe Purchaser agrees to cause the Offer Documents to be disseminated to holders of Shares, Parent, Purchaser as and to the extent required by the Securities Act and the --------------- Exchange Act. The Company shall promptly furnish to Parent and the Purchaser in writing all information concerning the Company and its Subsidiaries and stockholders that may be required by applicable securities Laws or reasonably requested by Parent or the Purchaser for inclusion in the Offer Documents. The Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct promptly any information provided by any of them it for use in the Offer Documents which Documents, if and to the extent that it shall have become false or misleadingmisleading in any material respect or as otherwise required by applicable Law, and Gambro, Parent and the Purchaser further agree to take all steps necessary agrees to cause the Schedule 14D-1 and the Schedule 13E-3 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 lawsthe Securities Act or the Exchange Act. Without limiting the foregoing, in the event of an Adverse Recommendation Change, Parent shall cause the Offer Documents to disclose such event. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents before they are filed with the SEC, and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that the Purchaser or its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Notwithstanding the foregoing, Parent and Purchaser’s obligations pursuant to the immediately preceding three sentences shall not apply if an Adverse Recommendation Change has occurred. Parent and Purchaser shall use commercially reasonable efforts to as promptly as practicable respond to any comments of the SEC or its staff regarding the Offer Documents.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement --------- shall and this Agreement not have having been terminated, if the Thermalloy Agreement is terminated in accordance with Section 7.01 and none prior to the Company's consummation of the events set forth transactions contemplated thereby, then Merger Sub may, upon written notice to the Company (the "Purchaser Notice"), and shall if the Company so requests in Annex A hereto shall have occurred or be existing, writing (the "Company Request") (and the Purchaser shall commence cause Merger Sub to), commence, within the Offer meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"), as promptly as reasonably practicable after the date hereof, but in no event later than five business days after giving the initial public announcement Purchaser Notice or receiving the Company Request, an offer to purchase all of Purchaser's intention the outstanding shares of Common Stock at a price (the "Offer Consideration") of $24.50 per share of Common Stock net to commence the seller in cash (the "Offer"). Subject to the conditions set forth in EXHIBIT A, Merger Sub shall not withdraw the Offer and shall purchase all Common Stock duly tendered and not withdrawn. The obligation of Merger Sub to, and of Purchaser to cause Merger Sub to, accept for payment payment, and pay for Shares for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the condition that there shall have been validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of shares of Common Stock which, together with the shares then owned by Purchaser or Merger Sub, represents at least a majority of the shares of Common Stock outstanding on a fully diluted basis (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares), other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex Exhibit A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms this Agreement and subject to the conditions of the Offer. Subject to the terms and conditions of the Offerthis Agreement. For purposes of this Agreement, Purchaser shall pay"on a fully diluted basis" means, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements theretoany date, the "Schedule 14D-1") with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms number of the related letter shares of ----------------- transmittal and any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other documentsCommon Stock outstanding, together with all supplements and amendments thereto, being referred the number of shares of Common Stock the Company is then required to herein collectively as issue pursuant to obligations outstanding at that date under the "Offer Documents"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false Stock Option Plans or misleading, and Gambro, Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws.otherwise
Appears in 1 contract
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Section 7.01 and none of the events set forth in Annex A hereto shall have occurred or be existingArticle VIII, Purchaser shall commence the Offer as promptly as reasonably practicable (and in any event on or before May 27, 2015) after the date hereof, but in no event later than five business days after Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence, within the initial public announcement meaning of Purchaser's intention Rule 14d-2 under the Exchange Act, the Offer to commence purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of the Offer. The , and the obligation of Purchaser Acquisition Sub to accept for payment and pay for Shares any shares of Common Stock tendered pursuant to the Offer, shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Common Stock (if any) then owned by Parent or its subsidiaries, represents a majority of the shares of Common Stock then outstanding (determined on a fully diluted basis as described below) (collectively, the “Minimum Condition”); (ii) this Agreement not having been terminated in accordance with its terms (the “Termination Condition”); and (iii) the satisfaction, or waiver by Parent or Acquisition Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, the number of shares of Common Stock outstanding on a fully diluted basis shall be the number of shares of Common Stock issued and outstanding plus the number of shares of Common Stock which the Company would be required to issue pursuant to any then outstanding warrants, options, benefit plans or obligations or securities convertible or exchangeable into shares of Common Stock or otherwise, but only to the extent so exercisable, convertible or exchangeable prior to consummation of the Merger or exercisable, convertible or exchangeable as a result of the consummation of the Offer or the Merger.
(b) Subject to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Acquisition Sub, of the other Offer Conditions, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer on or promptly after the applicable Expiration Date. Subject to Section 3.7, the Offer Price payable in respect of each share of Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be paid net to the seller in cash, upon without interest.
(c) The Offer shall be made by means of an offer to purchase (the terms and subject “Offer to the conditions of the Offer. Subject to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Offer Conditions. Unless previously approved by the Company in writing, Parent and Acquisition Sub shall not: (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, Purchaser (iii) change the number of shares of Common Stock to be purchased in the Offer, (iv) amend or waive the Minimum Condition, the Termination Condition or the conditions set forth in clauses (b) or (c)(i) of Annex I, (v) add any condition to the Offer or any term that is adverse to the holders of Common Stock, (vi) extend the expiration of the Offer except as required or permitted by this Section 2.1, (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Common Stock.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall pay, as promptly as practicable after expiration expire at 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer, for all Shares validly tendered as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and not withdrawndate, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(be) If as of any then scheduled Expiration Date, any Offer Condition has not been satisfied or, to the extent waivable by Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in order to permit the satisfaction of the Offer Conditions; provided, however, that Acquisition Sub shall not be required to extend the Offer beyond November 12, 2015 (the “Outside Date”), unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 8.1(b), and shall not extend the Offer beyond the Outside Date without the Company’s consent. In addition, Acquisition Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or the NYSE; provided, however, that Acquisition Sub shall not be required to extend the Offer beyond the Outside Date, unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 8.1(b), and shall not extend the Offer beyond the Outside Date without the Company’s consent.
(f) Acquisition Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly terminate the Offer and shall not acquire the shares of Common Stock pursuant thereto. If the Offer is terminated by Acquisition Sub, or this Agreement is terminated prior to the Acceptance Time, Acquisition Sub shall promptly return, and shall cause any depositary acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Common Stock that have not then been purchased in the Offer to the registered holders thereof.
(g) As promptly soon as reasonably practicable on the date of the commencement of the Offer, Purchaser shall file with the Securities Parent and Exchange Commission (the "SEC")Acquisition Sub shall:
(i) file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") TO with respect to the Offer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments amendments, supplements and supplements exhibits thereto, the "“Schedule 13E-3"TO”);
(ii) with respect deliver a copy of the Schedule TO, including all exhibits thereto, to the Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
(iii) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail a copy of the Schedule TO, to the NYSE in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and
(iv) cause the Offer Documents to be disseminated to all holders of shares of Common Stock as and -------------- to the other Transactions extent required by all applicable Laws, including the Exchange Act.
(as hereinafter defined). h) The Schedule 14D-1 and the Schedule 13E-3 TO shall contain 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 14D-1, the Schedule 13E-3include as exhibits, the Offer to Purchase Purchase, a form of letter of transmittal, a form of summary advertisement, and such other documentsa form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with all any amendments and supplements and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). GambroSubject to the provisions of Section 6.4, Parent, Purchaser the Company consents to the inclusion of a description of the Company Recommendation in the Schedule TO and the --------------- Company Offer Documents. Parent and Acquisition Sub, on the one hand, and the Company, on the other hand, agree to promptly correct promptly any information provided by any of them it for use in the Offer Documents which Documents, if and to the extent that such information shall have become false or misleadingmisleading in any material respect or as otherwise required by applicable Law, and Gambro, Parent and Purchaser further Acquisition Sub agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 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 all applicable federal securities lawsLaws, including the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with the SEC, and Parent and Acquisition Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Acquisition Sub shall provide the Company and its counsel promptly with copies of any written comments, and shall inform them of any oral comments, that Parent, Acquisition Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any proposed written or oral responses to the Schedule TO and Offer Documents and Parent and Acquisition Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel and to participate in any substantive telephonic communications with the staff of the SEC related thereto.
Appears in 1 contract
Samples: Merger Agreement (AOL Inc.)
