The Offer. (a) Prior to the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws. (b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not: (i) waive or change the Minimum Condition (as defined in Annex I); (ii) decrease the Offer Price; (iii) change the form of consideration to be paid in the Offer; (iv) decrease the number of Company Shares sought in the Offer; (v) impose additional Offer Conditions or other requirements to the Offer; (vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or (vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement. (c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act. (d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions. (e) Merger Sub 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 in accordance with its terms. (f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC. (g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc)
The Offer. (a) Prior Provided that this Agreement shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing (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, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, Merger Sub however, that such ten (i10) commenced 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 that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and 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 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 date of such commencement, the “Offer Commencement DateMinimum Condition”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iiiy) caused the Offer Documents to be disseminated to holders satisfaction (or waiver by Purchaser) of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the other conditions set forth in Annex I hereto (the “Offer Conditions”)A hereto. Merger Sub Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer Conditions and to make any change other changes in the terms of or conditions to the Offer; provided thatprovided, however, that no change may be made without the prior written consent of the CompanyCompany which decreases the price per Share payable in the Offer, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid payable in the Offer;
(iv) decrease , reduces the maximum number of Company Shares sought to be purchased in the Offer;
(v) impose additional Offer Conditions or other requirements , imposes conditions to the Offer;
(vi) otherwise amendOffer in addition to, modify or supplement modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any of other changes in the Offer Conditions or terms of the Offer that are in a any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; Shares or
(vii) extend or otherwise change , except as provided below, extends the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement DateOffer. Notwithstanding the foregoing, without subject to the consent right of the Companyparties to terminate this Agreement in accordance with Section 7.1, Merger Sub shall have Purchaser may, and at the right to request of the Company shall, extend the Offer (i) from time to time 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 or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied at or, to the Acceptance Time) shall not have been satisfied or waivedextent permitted by this Agreement, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, regulation or interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub that Purchaser shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the to a date that is 30 days after the date that all of the Offer Conditions (other later than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual 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 for a period satisfied. Subject to the terms of more than five Business Days. Following 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, Merger Sub may, in its sole discretion, provide a subsequent offering period Purchaser shall (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it Purchaser to, consummate the Offer in accordance with its terms and ) accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), for all Company Shares validly tendered and not withdrawn pursuant to the Offer and promptly after it is permitted to do so under applicable Laws (iibut in no event later than two (2) all Company Shares validly tendered in Business Days after such expiration date of the Subsequent Offering Period (Offer). In addition, if, at the time at which Company Shares are first accepted for payment under expiration date of the Offer, all of the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent conditions to cause Merger Sub) to accept for payment, and pay the Offer Price forhave been satisfied (or, each Company Share to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not properly withdrawn pursuant to the Offer 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 be subject only (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 satisfactiondate that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or waiver 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 Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer.
(b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent permitted hereunder) required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent or Merger Suband Purchaser, of each of on the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parentone hand, Merger Sub and the Company agrees Company, on the other hand, shall promptly to correct any information provided by it them for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become (be or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and Purchaser shall use, their reasonable best efforts to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the 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 on any change to the Schedule TO and upon the Offer Documents each time before any such document is they are filed with the SECSEC and disseminated to holders of Shares. In addition, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub Purchaser shall provide the Company and its counsel with (i) any comments that Parent or other communications, whether written or oral, that Parent, Merger Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications such comments, consult with the Company and (ii) a reasonable opportunity its counsel prior to participate in the response of Parent and Merger Sub responding to those any such comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating the Company with Parent and Merger Sub or their counsel in any discussions or meetings with the SECcopies of all such responses.
(gc) Parent Purchaser shall cause be entitled to be provided to Merger Sub all of deduct and withhold from the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase consideration otherwise payable pursuant to the OfferOffer (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, and shall cause Merger Sub to performas amended (the “Code”), on a timely basisor under any provision of state, all of Merger Sub’s obligations under this Agreementlocal or foreign Tax Law.
Appears in 2 contracts
Sources: Merger Agreement (Galderma Laboratories, Inc.), Merger Agreement (Collagenex Pharmaceuticals Inc)
The Offer. (a) Prior Subject to the date provisions of this Agreement, as promptly as practicable and in any event no later than October 9, 2014, Merger Sub (i) commenced Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence, within the Offer (meaning of Rule l4d-2 under the date of such commencementExchange Act, the “Offer Commencement Date”)Offer. The obligation of Merger Subsidiary to, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect and of Parent to cause Merger Subsidiary to, accept for payment and pay for any Shares tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the satisfaction of the conditions set forth in Annex I hereto (A and to the “Offer Conditions”). terms and conditions of this Agreement; provided that Parent and Merger Sub expressly reserves the right to Subsidiary may waive any of the conditions to the Offer Conditions (other than the Minimum Tender Condition, which may not be waived without the prior written consent of the Company) and to may make any change changes in the terms and conditions of or conditions to the Offer; provided Offer except that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or no change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change may be made to the form of consideration to be paid paid, (ii) no decrease in the Offer;
(iv) decrease Offer Price or the number of Company Shares sought in the Offer may be made, (iii) no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made, (iv) neither Parent nor Merger Subsidiary may extend the Offer;
, except in accordance with Section 2.1(c) and (v) impose additional otherwise amend the Offer Conditions or other requirements in any manner adverse to the Offer;
(vi) otherwise amend, Company or any holder of Shares. The parties hereto agree to cooperate in good faith to modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, as and if required by the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this AgreementSEC.
(cb) Unless extended On the date of commencement of the Offer, Parent and Merger Subsidiary shall file with the SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the terms of this AgreementExchange Act, the a Tender Offer shall expire at midnight Statement on Schedule TO (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) as amended and supplemented from time to time iftime, at the scheduled or extended expiration date “Schedule TO”), which shall comply in all material respects with the provisions of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shallfederal securities Laws, and Parent shall cause it to, consummate contain the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant offer to purchase relating to the Offer and forms of the related letter of transmittal and other appropriate documents (ii) all Company Shares validly tendered in the Subsequent Offering Period (the which documents, as amended or supplemented from time at which Company Shares to time, are first accepted for payment under the Offer, referred to herein collectively as the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance DateOffer Documents”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly Merger Subsidiary further agree to correct any information provided by it for use in the Schedule TO and disseminate the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case Shares as and to the extent required by applicable federal securities lawsLaws. In conducting the Offer, Parent and the Merger Subsidiary shall comply with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent and Merger Subsidiary for inclusion therein The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Sub Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall Subsidiary agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time be received from the SEC or its staff (whether written or oral) with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications thereof and prior to responding thereto and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub Subsidiary to those these comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub Subsidiary or their counsel in any discussions or meetings with the SEC. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent and Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each case, as and to the extent required by applicable Law.
(gc) The initial scheduled expiration date of the Offer shall be midnight, New York City time, on the twentieth Business Day after (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) the date of its commencement (the initial “Expiration Date,” and if and only if the expiration time and date is extended as authorized in this Agreement, as so extended, the “Expiration Date”); provided, however, that Merger Subsidiary: (i) may, from time to time extend the Offer for one or more periods of up to 10 Business Days each (or such longer period as may be agreed to by the Company), if at the scheduled Expiration Date any of the conditions of the Offer, including the Minimum Tender Condition and the conditions and requirements set forth on Annex A (other than conditions which by their nature are to be satisfied at the closing of the Offer), shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement or (ii) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the Expiration Date so long as the conditions and requirements set forth on Annex A have been complied with or validly waived. The Offer may not be terminated prior to its scheduled Expiration Date (as it may be extended in accordance with this Agreement) unless this Agreement is terminated in accordance with Section 8.1.
(d) Parent shall provide or cause to be provided to Merger Sub all of Subsidiary on a timely basis the funds necessary to purchase any Company Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Dune Energy Inc), Merger Agreement (Eos Petro, Inc.)
The Offer. (a) Prior At all times prior to the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any end of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided thatRevolving Period, without the prior written consent of the Company, Merger Sub shall notTUC shall:
(i) waive cause Bidco, until the earlier of the date the Offer lapses or change is finally closed, to comply in all material respects with the Minimum Condition City Code, the Financial Services Act ▇▇▇▇ (as defined ▇▇) and the Companies Act and all other applicable laws and regulations relevant in Annex I)the context of the Offer;
(ii) decrease cause Bidco to provide the Administrative Agent with such information regarding the progress of the Offer Price;as it may reasonably request and, provided no breach
(iii) change not cause or permit Bidco to declare the form Offer unconditional at a level of consideration 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 paid made by the terms of Rule 9 of the City Code in respect of the Target Shares;
(v) not cause or permit Bidco, without the prior consent of the Administrative Agent (acting on the instructions of the Required Lenders), to waive, amend or agree or decide not to enforce, in whole or in part, the conditions of the Offer set out in paragraph (c) (Referral) of Appendix 1 to the 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 (and the Borrowers acknowledge that the total indebtedness of the TEG Group requiring to be refinanced, 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 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;
(vii) cause Bidco to keep the Joint Lead Arrangers informed and consult with them as 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;
(ivB) decrease the number terms of Company Shares sought 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;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Texas Utilities Co /Tx/), 364 Day Competitive Advance and Revolving Credit Facility Agreement (Tu Acquisitions PLC)
The Offer. (a) Prior The Offer shall initially be made upon the Terms mutually agreed upon by the Members. The Members acknowledge that they have agreed to the date 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 AgreementAgreement to the contrary, Merger Sub (i) commenced the provisions of Section 4.01 shall be void and 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 Offer (including any supplements and amendments thereto) shall be determined by the date of Manager, provided that such commencement, other terms and conditions must be reasonable and customary under the “Offer Commencement Date”), (ii) filed with circumstances. Each Member shall provide all information reasonably requested by the SEC a Tender Offer Statement on Schedule TO with respect Company to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused complete the Offer Documents and consummate the Offer. Immediately following the Closing Date, the Company shall take all actions as are necessary for it to be disseminated to holders of Company Shares admitted to the extent required by applicable federal securities lawsPartnership as a substitute Limited Partner as to all of the Units purchased pursuant to the Offer.
(b) The Offer is subject only Except as provided in Section 4.02(c) below, any amendment to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any Terms 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease after the Offer Price;
(iii) change has been Commenced must be approved by all Members; provided, however, that only the form Manager need approve any extension of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer which, in a manner other than as contemplated the opinion of legal counsel to the Company in connection with the Offer, (i) is required by this Agreementthe Exchange Act and the rules and regulations thereunder or by the Commission or (ii) is otherwise advisable under the circumstances.
(c) Unless extended pursuant to and in accordance with If a Competing Offer has been Commenced, then the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub Manager may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 increase the purchase price of the Exchange ActOffer 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) Subject 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 terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) purchase price of the Offer Conditionsto a price that is at least equal to, Merger Sub shallbut not greater than 110% of, the purchase price of the Competing Offer, and Parent (iii) Cayuga does not agree within two Business Days after Fleetwood's request to increase the purchase price of the Offer, then the Company shall cause it to, consummate continue to make the Offer in accordance with its on unchanged terms and accept for payment and pay for, as promptly as practicable (i) after 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 (regardless of Subsequent Offering Periods)proposed by Fleetwood within such two Business day period, all Company Shares validly tendered and not withdrawn pursuant then the Manager shall take such action as is reasonably necessary to amend the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditionseffect such price increase.
(e) Merger Sub The Herm▇▇ ▇▇▇up, Inc. will be retained to act as depositary (the "Depositary") for each Offer on such terms as the Manager in its sole discretion shall not terminate determine. In addition, the Offer prior to any scheduled expiration date without the prior written consent of the Company except Depositary will be reimbursed for its reasonable out-of-pocket expenses incurred in the event that this Agreement is terminated in accordance connection with its termseach Offer.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Partnership Agreement (Cayuga Associates L P), Partnership Agreement (Devon Associates/Ny/)
The Offer. (a) Prior to The Borrower agrees that from and after the date of this AgreementEffective Date, Merger Sub it shall:
(i) commenced at all times comply in all material respects with the Offer Bidding Rules and all other applicable laws and regulations relevant to the Offer, except to the extent that any exemption, consents, waivers, or dispensations has been obtained from the Dutch Authority for the Financial Markets (“AFM”) or any other applicable regulator. The Borrower shall promptly notify the date Administrative Agent of any such commencementexemptions, consents, waivers, or dispensations and provide copies of any correspondence or approvals received from the “Offer Commencement Date”), AFM or other relevant regulators;
(ii) filed promptly provide the Administrative Agent with such information as it may reasonably request in writing regarding material changes to the status and progress of the Offer, including any regulatory and antitrust clearances required in connection with the SEC a Tender Offer Statement on Schedule TO with respect and any other information reasonably requested in relation to the Offer (together with Offer, subject only to confidentiality, regulatory, or other legal restrictions relating to the supply of such information and only to the extent such information is available to the Borrower. The Borrower shall take all amendments reasonable steps to ensure that such information is provided in a timely and supplements thereto and including exhibits theretoaccurate manner. Notwithstanding the foregoing, the “Schedule TO”) Borrower shall not be required to provide any information to the extent it has determined that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase such information cannot be provided without breaching applicable laws and a form of letter of transmittal regulations (including applicable securities and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and market abuse laws);
(iii) caused The Borrower shall not (and shall cause its Subsidiaries and Affiliates to not) amend or waive (or consent to amend or waive) any provision of the Offer Documents Documents, other than any amendment, waiver or consent:
(A) made with the consent of the Required Lenders;
(B) required or requested by the AFM or reasonably determined by the Borrower (acting on the advice of its legal advisers) as being necessary or desirable to be disseminated to holders comply with the requirements of Company Shares the AFM or any other relevant regulatory body or applicable law or regulation; or
(C) to the extent required by applicable federal securities laws.such amendment, waiver or consent would not constitute a Material Adverse Amendment;
(biv) The Offer is subject only use commercially reasonable endeavours to implement any Squeeze Out Procedure, or Alternative Transaction Structure as soon as reasonably possible after the conditions set forth in Annex I hereto Final Settlement Date;
(the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of v) not declare the Offer Conditions and to make any change in unconditional unless the terms of or conditions to Minimum Acceptance Condition is achieved;
(i) shall not execute the Offer; provided that, Merger Protocol without the prior written consent of the CompanyAdministrative Agent with respect to any financing-related content or any other information of material relevance to the Lenders as a whole, in their capacity as such (it being understood and agreed that the Administrative Agent agrees to and provides its consent in advance to the execution of the Merger Sub shall not:
Protocol in substantially the form delivered to it pursuant to Section 4.01(g)) save for any changes, amendments or provisions which are not adverse to the interests of the Lenders (i) waive or change the Minimum Condition (taken as defined in Annex Ia whole);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of issue the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub shall not terminate the Offer prior to any scheduled expiration date Initial Announcement without the prior written consent of the Company except Administrative Agent with respect to any financing-related content or any other information of material relevance to the Lenders, in their capacity as such, including, without limitation, the event Certain Funds Announcement (it being understood and agreed that this Agreement is terminated the Administrative Agent agrees to and provides its consent in accordance with its terms.advance to the issuance of the Initial Announcement in substantially the form delivered to it pursuant to Section 4.01(g)) save for any changes, amendments or provisions which are not adverse to the interests of the Lenders (taken as a whole); and
(fiii) Each of Parentshall, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that permitted under applicable laws and regulation, before issuing any Press Release or submitting the final version of the Offer Memorandum directly concerning any material commercial term of the financing of the Offer or the Transactions (the “Relevant Offer Documents”) and only to the extent such information shall have become Relevant Offer Document, (or shall have become known to bea) false or misleading is materially inconsistent with the Initial Announcement (if applicable) and any disclosure contained in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause Form 8-K filed on or around the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders date of Sharesthis Agreement, in each case with respect to any disclosure concerning the financing of the Offer or the Transactions, including, without limitation, the Certain Funds Announcement, and/or (b) could reasonably be expected to materially and adversely affect the interests of the Lenders (in their capacity as such and taken as a whole), the Borrower shall use reasonable efforts to provide a copy of such Relevant Offer Documents to the extent required by applicable federal securities laws. The Company Administrative Agent at least three (3) Business Days before such Relevant Offer Document is issued or submitted and its counsel shall be given a take into account any reasonable opportunity comments with respect to review and comment on any change to the Schedule TO and the such Relevant Offer Documents each time before any such document is filed with the SECDocuments, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with provided further that: (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time there shall be no requirement to time from the SEC or its staff with respect provide a copy of a Relevant Offer Document to the Schedule TO Administrative Agent in advance if the Borrower is required, under applicable laws and regulations, to issue or submit the Relevant Offer Documents promptly after receipt Document immediately or within a period of those comments less than three (3) Business Days, in which case the Borrower shall use reasonable efforts to deliver a copy to the Administrative Agent as soon as practicable prior to issuance or other communications submittance (and if not, as soon as practicable thereafter); (ii) the prior consent of the Administrative Agent shall at no time be required in order to issue a reasonable opportunity Relevant Offer Document; (iii) any comments by the Administrative Agent that is contrary to participate in requirements of applicable laws and regulations shall not be deemed reasonable; and (iv) the response of Parent and Merger Sub Administrative Agent shall be deemed to those comments and to provide have no comments on that response the Relevant Offer Document if such comments are not provided within two (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC2) Business Days of receipt of a copy of such Relevant Offer Document.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Bridge Credit Agreement (Keurig Dr Pepper Inc.), Bridge Credit Agreement (Keurig Dr Pepper Inc.)
The Offer. (a) Prior to the date of this Agreement, Merger Sub Provided that (i) commenced none of the Offer events or circumstances set forth in paragraphs (the date b)(i) through (b)(vi) of such commencement, the “Offer Commencement Date”), Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser) and (ii) filed the Company shall have complied with its obligations under Section 1.2 Company Actions, hereof, Purchaser shall commence (within the SEC a Tender Offer Statement on Schedule TO with respect to meaning of Rule 14d-2 under the Offer Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TOExchange Act”)) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form purchase all of letter of transmittal and summary advertisement the Shares (collectively, together with any amendments or supplements thereto, other than the “Offer Documents”Currently Owned Shares) and (iii) caused at the Offer Documents to be disseminated to holders of Company Shares to Price as promptly as reasonably practicable after the extent required by applicable federal securities lawsdate hereof.
(b) 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, at the time of the expiration of the Offer (as may be extended from time to time in accordance with this Section 1.1, the “Expiration Time”), 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. The Offer is Price shall, subject to any required withholding of Taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer.
(c) The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Purchaser) of the conditions set forth in Annex I hereto A hereto.
(the “Offer Conditions”). Merger Sub d) Purchaser expressly reserves the right to to:
(i) waive any of the Offer Conditions and to conditions set forth in Annex A hereto;
(ii) increase the price per Share payable in the Offer; and
(iii) make any change other changes in the terms of or conditions to the Offer; provided thatprovided, however, that no change may be made without the prior written consent of the Company, Merger Sub shall notCompany which:
(i1) waive or change decreases the Minimum Condition (as defined price per Share payable in Annex I)the Offer;
(ii2) decrease the Offer Price;
(iii) change changes the form of consideration to be paid in the Offer;
(iv3) decrease reduces the maximum number of Company Shares sought to be purchased in the Offer;
(v4) impose additional Offer Conditions or other requirements imposes conditions to the Offer;Offer in addition to the conditions set forth in Annex A hereto; or
(vi5) otherwise amend, modify modifies or supplement amends any of the Offer Conditions conditions set forth in Annex A hereto or makes other changes in the terms of the Offer that are in a any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of Shares or, except as provided below, extends the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this AgreementExpiration Time.
(ce) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to Purchaser shall:
(i) extend the Offer (i) from time to time beyond the initial scheduled Expiration Time, which shall be 20 Business Days following the date of commencement of the Offer, or any extension of the Expiration Time, if, at the scheduled or extended expiration date of the OfferExpiration Time, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not have been be satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and subject, however, to the parties’ respective rights to terminate this Agreement pursuant to Section 7.1. Termination; and
(ii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, .
(if) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual Each extension of the Offer pursuant to paragraph (e)(i) of this Section 1.1 shall be for a period not exceed the lesser of more than five Business Days. Following expiration 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, Merger Sub may, Offer set forth in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange ActAnnex A hereto to be satisfied.
(dg) Subject If, at the Expiration Time, all of the conditions to the terms and conditions set forth in this Agreement and to Offer have been satisfied but the satisfaction or waiver (if permitted hereunder) number of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer Offer, when taken together with the Currently Owned Shares, 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 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:
(i) give the required notice of such subsequent offering period; and
(ii) immediately accept for payment and promptly pay for all Shares validly tendered and not withdrawn as of such Expiration Time.
(h) The Company and Purchaser agree that no Shares held by the Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the Offer. The Company has caused each of the officers and directors of the Company listed on Section 1.1(h) of the Company Disclosure Schedule to execute and deliver to Parent and Purchaser letter agreements, substantially in the forms attached hereto as Annex B (collectively, the “Equity Award Letter Agreements”), pursuant to which such officers and directors have, among other things, agreed to (i) not exercise outstanding options to purchase Company Common Stock through Closing and (ii) relinquish all Company Shares validly tendered in rights under existing equity award agreements with the Subsequent Offering Period Company.
(i) As promptly as practicable on the time at which Company Shares are first accepted for payment under date of commencement of the Offer, Parent and Purchaser shall file with the “Acceptance Time” SEC:
(i) a Tender Offer Statement on Schedule TO (together with all amendments, supplements and the date on which Company Shares are first accepted for payment under the Offerexhibits thereto, the “Acceptance DateSchedule TO”) with respect to the Offer; and
(ii) a Schedule 13E-3.
(j) The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). The obligation of Merger Sub (and of Company shall promptly provide Parent with all information concerning the Company that is required to cause Merger Sub) to accept for payment, and pay be included in the Offer Price for, each Company Share validly tendered Documents. Parent and not properly withdrawn pursuant Purchaser shall cause the Offer Documents to be disseminated to the Offer shall be subject only to holders of the satisfaction, or waiver (Shares as and to the extent permitted hereunder) required by applicable federal securities laws. Parent or Merger Suband Purchaser, of each of on the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parentone hand, Merger Sub and the Company agrees Company, on the other hand, shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become (be or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and Purchaser shall use, their reasonable best efforts to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the 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 laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Tender Offer and Merger Agreement (National Patent Development Corp), Tender Offer and Merger Agreement (Five Star Products Inc)
The Offer. (a) Prior Provided that (i) this Agreement shall not have been terminated in accordance with its terms and (ii) the Company shall have complied with its applicable obligations under Section 1.4, Parent shall use its reasonable best efforts to cause Bid Sub to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days following the effectiveness of the Parent Registration Statement. For the avoidance of doubt, Parent may consummate the Offer through Bid Sub, its wholly-owned Subsidiary.
(b) The obligation of Bid Sub (and Parent’s obligation to cause Bid Sub) to accept for exchange, and exchange the Offer Price for, any Company Common Shares tendered pursuant to the date Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer (other than Company Common Shares tendered by guaranteed delivery where actual delivery has not occurred), prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Common Shares that, together with any Company Common Shares then directly or indirectly owned by Parent, Bid Sub or Merger Sub, represents at least 90% of all outstanding Company Common Shares (excluding shares held by the Company) (the “Minimum Condition”) and (ii) the other conditions set forth in Annex A (the Minimum Condition and such other conditions collectively referred to herein as the “Offer Conditions”). Parent and Bid Sub expressly reserve the right in their sole and absolute discretion to waive any of the Offer Conditions (if such waiver is permitted hereunder) and to modify the terms of the Offer; provided that unless previously approved in writing by the Company in the Company’s sole and absolute discretion, (A) the Minimum Condition may not be amended or waived (provided that if all the conditions in Annex A (other than the Minimum Condition and conditions that shall be satisfied on the Closing Date) have been satisfied or (if such waiver is permitted hereunder) waived, Parent may elect, in its sole and absolute discretion, to waive the Minimum Condition down to 66 2/3% of all outstanding Company Common Shares (excluding shares held by the Company)), (B) no change may be made that changes the form of consideration to be paid or decreases the cash per Company Common Share, the number of Company Common Shares sought in the Offer or the number of Parent Shares per Company Common Share and (C) no change may be made that amends in a manner adverse to the holders of Company Common Shares (which, for the avoidance of doubt, shall not include any waiver of the Minimum Condition other than in accordance with the proviso in clause (A)), or adds to, the Offer Conditions, provided, that Bid Sub may change the amount of Cash Consideration and Stock Consideration offered as contemplated by and in accordance with this Agreement and (C) except as set forth in Section 1.1(c), the Offer may not be extended.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, Merger Sub the Offer shall expire at 10:00 a.m., New York City time, on the twenty-first (21st) Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced. Subject to the parties’ respective termination rights under Section 9.1 (if applicable), (i) commenced if, at the scheduled or extended expiration date of the Offer, any Offer Condition has not been satisfied or waived (if such waiver is permitted hereunder), Bid Sub shall (and Parent shall cause Bid Sub to) extend the Offer for successive periods of ten (10) Business Days each or such other number of Business Days as the parties may agree in order to permit the satisfaction of such Offer Conditions, until the earlier to occur of (x) the satisfaction or waiver (if such waiver is permitted hereunder) of all of the Offer Conditions and (y) the End Date (as may be extended pursuant to Section 9.1(c)), and (ii) Bid Sub shall (and Parent shall cause Bid Sub to) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the “SEC”) or its staff or the New York Stock Exchange (including any successor exchange, “NYSE”) applicable to the Offer or any period required by applicable Law. Following the expiration of the Offer, Bid Sub may elect to provide one or more subsequent offering periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act and in compliance with all other provisions of applicable Law. The Offer Price payable in respect of each Company Common Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid to the holder thereof in cash and Parent Shares, subject to reduction for any applicable withholding Taxes.
(d) Subject to the foregoing and other applicable Law and upon the terms of and subject to the conditions of the Offer, Bid Sub shall (and Parent shall cause Bid Sub to) accept for exchange, as promptly as permitted under applicable securities Law, and exchange and pay for, or cause to be exchanged and paid for, (after giving effect to any required withholding Tax), as promptly as practicable after the date on which Bid Sub first accepts Company Common Shares for exchange pursuant to the Offer (the date and time of such commencementfirst acceptance, regardless of any Subsequent Offering Periods pursuant to Rule 14d-11 of the Exchange Act, the “Offer Commencement DateAcceptance Time”), all Company Common Shares (i) validly tendered and not withdrawn pursuant to the Offer or (ii) filed validly tendered in any such Subsequent Offering Period. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Parent and Bid Sub expressly reserve the right to delay exchanges of Company Common Shares in order to comply in whole or in part with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act.
(e) No fraction of a Parent Share shall be issued in connection with the Offer, no dividends or other distributions with respect to Parent Shares shall be payable on or with respect to any such fractional share interest, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a shareholder of Parent. In lieu thereof, each tendering Company shareholder who would otherwise be entitled to a fractional Parent Share (after aggregating all fractional Parent Shares that otherwise would have been received by such Company shareholder) shall, upon surrender of (i) certificates registered in the name of such shareholder and representing outstanding Company Common Shares (each, a “Company Certificate”) or (ii) evidence of uncertificated shares of Company Common Shares represented by book-entry (each, a “Book-Entry Share”), in each case, be entitled to receive an amount of cash (without interest and subject to the amount of any withholding taxes as contemplated by Section 3.2(i)) rounded to the nearest whole cent determined by multiplying (i) the Acceptance Time Parent Share Price by (ii) the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that such cash payment in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(f) The Company agrees that no Company Common Shares held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) On the date of commencement of the Offer, Parent and Bid Sub shall (and Parent shall cause Bid Sub to) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer shall contain an offer to Purchase exchange and a form of related letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the Parent Registration Statement and such other ancillary documents as may be required, the “Offer Documents”). Parent and Bid Sub agree to use reasonable best efforts to, as promptly as practicable on the date of commencement of the Offer: (x) and (iii) caused cause the Offer Documents to be disseminated to holders the Company’s shareholders as and to the extent required by applicable U.S. federal and, if applicable, Canadian securities Laws and the Swiss Code of Obligations, (y) deliver a copy of the Offer Documents to the Company Shares at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act and (z) 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 Offer Documents to the NYSE in accordance with Rule 14d-3(a) promulgated under the Exchange Act. The Company shall promptly furnish to Parent and Bid Sub in writing all information concerning the Company, its directors, officers and Affiliates as may be required by applicable securities Law or reasonably requested by Parent or Bid Sub for inclusion in the Schedule TO or the other Offer Documents. Parent and Bid Sub shall (and Parent shall cause Bid Sub to) use their reasonable best efforts to: (x) cause the Schedule TO and the other Offer Documents to comply in all material respects with (A) the Securities Act and the Exchange Act, (B) the rules and regulations of the NYSE and the TSX, (C) the rules and regulations of FINRA and (D) the Swiss Code of Obligations, in each case, as applicable. If at any time before consummation of the Offer Parent shall become aware that there has occurred an event that is required to be set forth in an amendment to the Schedule TO or in a supplement to the other Offer Documents: (1) Parent shall promptly prepare such an amendment or supplement; and (2) Parent shall promptly file with the SEC and distribute to the shareholders of the Company such amendment or supplement, in each case, as and to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” Law and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”)Swiss Code of Obligations. The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Bid Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the other Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. The Company and Parent will, and Merger Sub have usedwill cause their respective Representatives to, reasonably cooperate with the other in the preparation of the Schedule TO and the other Offer Documents. Without limiting the generality of the foregoing, Parent shall, and shall usecause its Representatives to, their reasonable best efforts to cause provide the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given Representatives with a reasonable opportunity opportunity, in advance of initial filing or any amendment or filing of any supplement thereto, to review and comment on any change to the Schedule TO and the other Offer Documents each time before any such document is filed with the SEC, and Documents. Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by promptly notify the Company and its counsel. Parent and Merger Sub shall provide in writing of the Company and its counsel with (i) receipt of any written or oral comments from or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from correspondence with the SEC or its staff with respect to the Schedule TO or the other Offer Documents and any request by the SEC or its staff for amendments or supplements to the Schedule TO or the other Offer Documents or for additional information and shall promptly after receipt supply the Company with copies of those comments all correspondence between it and any of its Representatives or Affiliates, on the one hand, and the SEC or its staff, on the other communications and (ii) a reasonable opportunity hand, with respect to participate in the response of Parent and Merger Sub 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 Sub Schedule TO or their counsel in any discussions or meetings with the SECother Offer Documents.
(gh) Parent shall provide or cause to be provided to Merger Sub all of the Exchange Agent in accordance with Section 3.2 the funds and Parent Shares necessary to purchase accept for payment, and pay for, any Company Common Shares that Merger Bid Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(i) If, between the date hereof and the date on which any Company Common Share is accepted for payment and paid for pursuant to the Offer, the Company Common Shares are changed (or a record date for such change occurs) into a different number or class of shares by reason of any stock split, stock dividend, reclassification, recapitalization or other similar transaction, then the Offer Price shall be appropriately and proportionately adjusted, taking into account the record and payment or effective dates, as the case may be, for such transaction.
(j) If, between the date hereof and the date on which any Company Common Share is accepted for payment and paid for pursuant to the Offer, the outstanding Parent Shares are changed (or a record date for such change occurs) into a different number or class of shares by reason of any division or subdivision of shares, stock dividend, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall be appropriately and proportionately adjusted, taking into account the record and payment or effective dates, as the case may be, for such transaction.
(k) Unless this Agreement is terminated pursuant to Section 9.1, Bid Sub shall not (and Parent shall cause Bid Sub not to) terminate or withdraw the Offer prior to any scheduled expiration date without the prior written consent of the Company in its sole and absolute discretion, except that in the event this Agreement is terminated pursuant to Section 9.1, Bid Sub shall (and Parent shall cause Bid Sub to) promptly (and in any event within twenty-four (24) hours) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Company Common Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the purchase of Company Common Shares in the Offer, Bid Sub shall (and Parent shall cause Merger Bid Sub to) promptly return, or cause any depositary acting on behalf of Bid Sub to perform, on a timely basisreturn, all tendered Company Common Shares to the tendering shareholders of Merger Sub’s obligations under this Agreementthe Company.
Appears in 2 contracts
Sources: Merger Agreement (Fairfax Financial Holdings LTD/ Can), Merger Agreement (Allied World Assurance Co Holdings, AG)
The Offer. (a) Prior Subject to the date provisions of this Agreement, Merger Sub (i) commenced the Offer (as promptly as practicable but in no event later than five business days after the date of such commencementthe public announcement by Parent and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence the “Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer Commencement Date”)and accept for payment, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect and pay for, any Shares tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto Exhibit A (the “"Offer Conditions”). Merger Sub expressly reserves the right to waive ") (any of the Offer Conditions and to make any change which may be waived in the terms of whole or conditions to the Offer; in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have not waive the Minimum Condition (as defined in Exhibit A)). Sub expressly reserves the right to extend modify the Offer terms of the Offer, except that, without the consent of the Company, Sub shall not (i) from time reduce the number of Shares subject to time ifthe Offer, (ii) reduce the Offer Price, (iii) impose any other conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend, waive or add any other term of the Offer in any manner adverse to the Company or the holders of Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer, Offer any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been be satisfied or waived, until such Offer Conditions time as such conditions are satisfied or waived (if permitted hereunder) and waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iii) extend the Offer for any reason for one or any more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date that would otherwise required by applicable Legal Requirementbe permitted under clause (i) or (ii) of this sentence. If any of So long as this Agreement is in effect and the Offer Conditions is have not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are been satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it Sub to, consummate cause the Offer in accordance with its not to expire. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted that Sub is permitted to accept for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for paymentapplicable law, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to as soon as practicable after the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each expiration of the Offer ConditionsOffer.
(eb) Merger On the date of commencement of the Offer, Parent and Sub shall not terminate file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D- 1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer prior to will be made, together with any scheduled expiration date without supplements or amendments thereto, the prior written consent of the Company except in the event that this Agreement is terminated in accordance with its terms.
(f) Each of "Offer Documents"). Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and shall use, their reasonable best efforts further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of 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 on any change to the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration SEC or dissemination to any comments made by the Company and its counselstockholders of the Company. Parent and Merger Sub shall agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECsuch comments.
(gc) Prior to the expiration of the Offer, Parent shall provide or cause to be provided to Merger Sub all of the funds necessary to purchase accept for payment, and pay for, any Company Shares that Merger Sub becomes obligated is permitted to purchase accept for payment under applicable law and pay for, pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Aon Corp), Merger Agreement (Alexander & Alexander Services Inc)
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Section 8 and that none of the date of this Agreement, Merger Sub events or conditions set forth in clause (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”c), (iid), (e)(ii), (e)(iii) filed with the SEC a Tender Offer Statement on Schedule TO (with respect to the Offer 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 and be continuing 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 all amendments the rules and supplements thereto and including exhibits theretoregulations thereunder, the “Schedule TOExchange Act”)) that included the summary term sheet required thereby and, as exhibits, the Offer as promptly as 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. The obligation of Purchaser to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused accept for payment Shares validly tendered pursuant to the Offer Documents and to pay the Per Share Amount for each such tendered and not subsequently withdrawn Share shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I A hereto (the “Tender Offer Conditions”). Merger Sub Purchaser expressly reserves the right to waive any of such Tender Offer Condition, to increase the Offer Conditions Per Share Amount payable in the Offer, and to make any change in other changes to the terms and conditions of or conditions to the Offer; provided thatprovided, however, that without the prior written consent of the Company, Merger Sub Company (which consent shall not:not be unreasonably withheld with respect to clauses (iii)(D) or (iii)(E) below):
(i) waive or change the Minimum Condition (as defined in Annex I)A) may not be waived;
(ii) decrease the Offer Price;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 if any such waiver would be reasonably likely to result in personal liability to any director, officer, or employee of any party hereto; and
(iii) no change may be made that (A) changes the form of consideration to be paid pursuant to the Offer, (B) decreases the Per Share Amount payable in the Offer;
, (ivC) decrease reduces the maximum number of Company Shares sought to be purchased in the Offer;
, (vD) impose additional Offer Conditions or other requirements imposes conditions to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affectsaddition to those set forth in Annex A hereto, or could reasonably be expected (E) amends the Tender Offer Conditions set forth in Annex A hereto in any manner adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(cb) Unless extended pursuant to and in accordance with On the terms date of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date commencement of the Offer, any of Purchaser shall file with the Securities and Exchange Commission (the “SEC”) a Tender Offer Conditions Statement on Schedule TO (other than conditions which by their nature are to be satisfied at together with all amendments and supplements thereto, the Acceptance Time“Schedule TO”) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable with respect to the Offer or any period otherwise required by that will comply in all material respects with the provisions of all applicable Legal RequirementRequirements. If any The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and forms of the Offer Conditions is not satisfied or waived on related letter of transmittal and forms of notice of guaranteed delivery and any scheduled expiration date of related summary advertisement (the OfferSchedule TO, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date to Purchase and (y) the date that is 30 days after the date that such other documents, together with all of the Offer Conditions (other than the Minimum Condition supplements and those that by their nature are amendments thereto, being referred to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, herein collectively as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance DateOffer Documents”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and shall use, their reasonable best efforts Purchaser further agree to take all steps necessary to cause the Schedule TO 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 shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any prior to such document is documents being filed with the SEC, and SEC or disseminated to holders of Shares. Parent and Merger Sub Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub Purchaser shall provide the Company (in writing, if written), and its counsel consult with (i) the Company regarding, any comments or other communications, whether (written or oral, ) that Parent, Merger Sub Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff the SEC Staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications such comments. The Company and (ii) 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 Merger Sub Purchaser 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 Sub or their counsel in any discussions or meetings with the SECsuch comments.
(gc) 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 provided to Merger Sub returned, all of the funds necessary to purchase any Company tendered Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreementregistered holders thereof).
Appears in 2 contracts
Sources: Merger Agreement (On Semiconductor Corp), Merger Agreement (California Micro Devices Corp)
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Section 8.01, as promptly as practicable and in any event within one Business Day following the date of this Agreementhereof (or such later date as the parties may mutually agree in writing), Merger Sub (i) commenced shall amend the Offer (to reflect the date execution of such commencement, the “Offer Commencement Date”)this Agreement, (ii) shall file an amendment to its Schedule TO, which amendment shall include an amended offer to purchase, form of transmittal letter, form of notice of guaranteed delivery and all other necessary documents and exhibits with the Securities and Exchange Commission (the “SEC”) and make all deliveries, filings, publications, mailings and telephonic notices required to be made in connection with the Offer under the Federal securities laws, including Regulations 14D and 14E of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”) (such documents filed or required to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto such other filings, deliveries, mailings and including exhibits theretonotices, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase collectively and a form of letter of transmittal and summary advertisement (collectively, together with any amendments amendments, exhibits or supplements thereto, the “Offer Documents”) and (iii) caused shall use its reasonable best efforts to consummate the Offer Documents Offer. Parent will cause Merger Sub to be disseminated to holders accept for payment and pay for any shares of Company Shares Common Stock tendered pursuant to the extent required by applicable federal securities laws.
(b) The Offer is Offer, subject only to the condition that there shall be validly tendered and not withdrawn prior to the expiration of the Offer such number of shares of Company Common Stock that, when added to the shares of Company Common Stock already owned by Parent or any of its Subsidiaries, would constitute at least a majority of the shares of Company Common Stock outstanding determined on a Fully Diluted Basis on the date of expiration of the Offer (the “Minimum Condition”) and to the other conditions set forth in Annex I hereto (together with the Minimum Condition, collectively, the “Tender Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, without .
(b) Without the prior written consent of the Company, Merger Sub shall not:
not (i) waive or change the Minimum Condition (as defined in Annex I);
(iiand Parent shall cause Merger Sub not to) decrease the Offer Price;
(iii) Price or change the form of consideration to be paid payable in the Offer;
(iv) , decrease the number of shares of Company Shares Common Stock sought to be purchased in the Offer;
(v) , impose additional Offer Conditions or other requirements conditions to the Offer;
(vi) otherwise amend, modify Offer or supplement amend any of the Offer Conditions or terms other term of the Offer in a manner that adversely affects, or could reasonably be expected is adverse to adversely affect, the holders of shares of Company Common Stock, except as provided in this Agreement. The Offer shall remain open until the Company Shares; or
(vii) extend or otherwise change date that is five Business Days after the expiration date amendment of the Offer in a manner other than (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended as contemplated may be required by this Agreement.
(c) Unless extended pursuant to and applicable Law or in accordance with the terms immediately following sentence, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that Merger Sub may (or, at the Company’s option, if at least 80% of this Agreementthe outstanding shares of Company Common Stock on a Fully Diluted Basis have been tendered and accepted for payment by Merger Sub, the Offer shall expire at midnight (New York City timeshall) on the twentieth Business Day provide for a subsequent offering period after the Offer Commencement Expiration Date, in accordance with Rule 14d-11 under the Exchange Act (including the obligations that Merger Sub immediately accept and promptly pay for all shares of Company Common Stock tendered during the initial offering period and immediately accept and promptly pay for any shares of Company Common Stock tendered during such subsequent offering period). Notwithstanding the foregoingIf, without the consent at any Expiration Date, any of the CompanyTender Offer Conditions are not satisfied or waived by Merger Sub, Merger Sub shall have the right to (and Parent shall cause Merger Sub to) extend the Offer (i) from time to time iftime, at each such extension not to exceed such number of days that Merger Sub reasonably believes is necessary to cause the scheduled or extended expiration date of the Offer, any of the Tender Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall (but in any event not have been satisfied or waivedmore than 15 Business Days for all such extensions, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided thatunless, in each case, (i) the parties shall otherwise mutually agree in writing). Under no circumstances shall Parent or Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than waive the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business DaysCondition. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms of the Offer and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Tender Offer ConditionsConditions as of any Expiration Date, including the Minimum Condition, Parent will cause Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and to accept for payment and pay for, as promptly as practicable (i) after the expiration for any and all shares of the Offer (regardless of Subsequent Offering Periods), all Company Shares Common Stock validly tendered and not validly withdrawn pursuant to the Offer and (ii) all promptly after such Expiration Date, regardless of the number of shares of Company Shares validly Common Stock tendered in the Subsequent Offering Period Offer (the time at which Company Shares are first accepted such date as Merger Sub shall be obligated to accept for payment under the Offer, the “Acceptance Time” any and the date on which all shares of Company Shares are first accepted for payment under Common Stock validly tendered and not validly withdrawn pursuant to the Offer, the “Acceptance Date”). The obligation For the avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, Merger Sub shall not (and of Parent to shall cause Merger SubSub not to) to accept for payment, and pay the Offer Price for, each payment any shares of Company Share validly Common Stock tendered and not properly withdrawn pursuant to the Offer unless the Minimum Condition shall be subject only to the satisfaction, or waiver have been satisfied.
(to the extent permitted hereunderc) by Each of Parent or and Merger Sub, of each of on the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parentone hand, Merger Sub and the Company Company, on the other hand, agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. Parent respect and Merger Sub have used, and shall use, their reasonable best efforts further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal Federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed in advance of their filing with the SEC, SEC and Parent and Merger Sub shall give reasonable and good faith consideration dissemination to any comments made by stockholders of the Company and its counselCompany. Parent and Merger Sub shall provide to the Company and its counsel with (i) copies in writing of any comments or other communications, whether written or oral, and shall inform the Company of any oral comments that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications such comments. The Company and (ii) its counsel shall be given a reasonable opportunity to participate in the response of Parent review any such written and Merger Sub to those oral 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 Sub or their counsel in any discussions or meetings with the SECproposed responses.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Iron Acquisition Corp), Merger Agreement (Engelhard Corp)
The Offer. (a) Prior Subject to the date conditions of this Agreement, Merger as promptly as reasonably practicable, Sub shall, and Parent shall cause Sub to, commence within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (such Act and the rules and regulations promulgated thereunder being referred to herein as the "Exchange Act") the Offer. The obligations of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A attached hereto. Sub expressly reserves the right to waive any condition to the Offer or amend or modify the terms of the Offer, except that, without the written consent of the Company, Sub shall not (i) commenced reduce the Offer (number of shares of Company Common Stock subject to the date of such commencement, the “Offer Commencement Date”)Offer, (ii) filed reduce the Merger Consideration per share of Company Common Stock to be paid pursuant to the Offer, (iii) waive the Minimum Tender Condition, add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, or (iv) change the form of consideration payable in the Offer. Parent and Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond February 10, 2002. On the terms and subject to the conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer promptly after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoOffer, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer which shall contain an offer to Purchase purchase and a form of related letter of transmittal (such Schedule TO and summary advertisement (collectivelythe documents included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”) "). Parent and (iii) caused Sub agree that the Offer Documents shall comply as to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth form in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance all material respects with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject , and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the terms and conditions set forth Company's shareholders, 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 this Agreement and order to make the satisfaction or waiver (if permitted hereunder) statements therein, in light of the Offer Conditionscircumstances under which they were made, Merger Sub shallnot misleading, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, except that no representation or waiver (to the extent permitted hereunder) warranty is made by Parent or Merger Sub, Sub with respect to information supplied by the Company or any of each of its shareholders specifically for inclusion or incorporation by reference in the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and each of Parent and Merger Sub have used, shall take all steps necessary to amend or supplement the Offer Documents and shall use, their reasonable best efforts to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected amended or supplemented to be disseminated to holders of Sharesthe Company's shareholders, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration SEC or dissemination to any comments made by the Company and its counselshareholders of the Company. Parent and Merger Sub shall provide the Company and its counsel in writing with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and purchase any shares of Company Common Stock that Sub becomes obligated to accept for payment, and purchase pursuant to the Offer.
(d) The Company hereby approves of and consents to the Offer, the Merger and the other transactions contemplated by this Agreement. The Company hereby represents that the Company's Board of Directors (the "Board of Directors"), at a meeting duly called and held, has (i) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interest of the Company and its shareholders, (ii) approved this Agreement and the transactions contemplated hereby, including the Offer, the Merger and the Stock Option Agreement dated the date hereof by and between the Company and Sub (the "Option Agreement"), and (iii) resolved to recommend that the Company's shareholders accept the Offer and tender their Shares pursuant to the Offer, and approve and adopt this Agreement and the Merger. The Company further represents that ▇.▇. ▇▇▇▇▇▇▇▇ & Co. has rendered to the Board of Directors its written opinion (a copy of which has been furnished to Parent prior to the execution and delivery of this Agreement by the Company) to be included in the Schedule 14D-9 (as defined below), to the effect that the consideration to be received by the holders of the shares of Company Common Stock pursuant to each of the Offer and the Merger is fair to the holders of such shares from a financial point of view. The Company has been advised that all of its directors and executive officers intend to tender their shares of Company Common Stock pursuant to the Offer.
(e) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended or supplemented from time to time time, the "Schedule 14D-9") describing the recommendation of the Board of Directors of the Company to the Company's shareholders that they accept the Offer, tender their shares pursuant to the Offer and approve this Agreement and shall mail the Schedule 14D-9 to the holders of Company Common Stock. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to information supplied by Parent or Sub specifically for inclusion in the Schedule 14D-9. Each of the Company, Parent and Sub shall promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company's shareholders, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given reasonable opportunity to review and comment upon the Schedule 14D-9 prior to its filing with the SEC or dissemination to shareholders of the Company. The Company shall provide Parent and its counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule TO or Offer Documents 14D-9 promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECsuch comments.
(gf) Parent In connection with the Offer and the Merger, the Company shall cause its transfer agents to be provided to Merger furnish Sub all promptly with mailing labels containing the names and addresses of the funds record holders, the consenting beneficial owners and the names and addresses of the brokers representing the non-consenting beneficial holders of Company Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of shareholders, security position listings and computer files and all other information in the Company's possession or control regarding the beneficial owners of Company Common Stock, and shall furnish to Sub such information and assistance (including updated lists of shareholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to the Company's shareholders Subject to the requirements of applicable law, and except for such steps as are necessary to purchase disseminate the Offer Documents and any Company Shares that Merger Sub becomes obligated other documents necessary to purchase pursuant to consummate the Offer, the Merger and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under the other transactions contemplated by this Agreement, Parent and Sub shall hold in confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Offer and the Merger and, if this Agreement shall be terminated, shall, upon request, deliver to the Company all copies of such information then in their possession.
Appears in 2 contracts
Sources: Merger Agreement (Alpnet Inc), Merger Agreement (Alpnet Inc)
The Offer. (a) Prior Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE X, (ii) all of the conditions set forth in clauses 2(a), (b), (c), (d), (e), (g), (h), and (i) of ANNEX I shall then be satisfied (in the case of clause 2(e), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived by Parent and Acquisition Sub and (iii) the Company has timely provided any information required to be provided by it pursuant to Section 2.01(h), as promptly as practicable after the date of this Agreement (and in any event within 10 Business Days of the date of this Agreement), Merger Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Parent and Acquisition Sub of the other conditions set forth in ANNEX I (collectively, the “Offer Conditions”), as soon as practicable after the Expiration Date, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) consummate the Offer in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Parent and Acquisition Sub expressly reserve the right to (i) commenced increase the Offer Price, (ii) waive any Offer Condition and (iii) make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Parent and Acquisition Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects Stockholders generally, (F) waive, amend or otherwise change the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be terminated prior to the Expiration Date unless this Agreement is terminated in accordance with ARTICLE X.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 12:00 a.m. (New York City time) on the date that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied, or waived by Parent and Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one or more periods of not more than 20 Business Days (subject to the foregoing, the length of each such period to be determined by Parent in its sole discretion) or such other number of Business Days as the parties may agree (subject to the right of Parent and Acquisition Sub to waive any Offer Condition (other than the Minimum Condition) in accordance with this Agreement and the parties’ respective rights to terminate this Agreement in accordance with ARTICLE X); and
(ii) Acquisition Sub shall extend, and Parent shall cause Acquisition Sub to extend, the Offer for the minimum period required by Applicable Law, interpretation or position of the SEC or its staff or the NYSE or its staff.
(f) Without limiting the other provisions of this Agreement, if at any time during the period between the date of such commencementthis Agreement and the time when Acquisition Sub accepts, for the first time, for payment Shares validly tendered and not properly withdrawn pursuant to the Offer (the “Offer Commencement DateAcceptance Time”), any change in the outstanding shares of capital stock of the Company shall occur by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the Offer Price shall be equitably adjusted to reflect such reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or stock dividend thereon.
(iig) filed In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on behalf of Acquisition Sub to return, in accordance with Applicable Law, all tendered Shares to the record holders thereof.
(h) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Acquisition Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, will contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement (collectivelyii) cause the Offer to Purchase and related documents to be disseminated to Stockholders. Parent and Acquisition Sub agree that they shall cause the Schedule TO and all exhibits, together with any amendments or supplements thereto, thereto (which together constitute the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required filed by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger either Parent or Acquisition Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right SEC to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, comply in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance material respects with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” Act and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”)rules and regulations thereunder and other Applicable Law. The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Acquisition Sub and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Acquisition Sub have used, and shall use, their further agree to use all reasonable best efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of SharesStockholders, in each case as and to the extent required by applicable federal securities lawsApplicable Law. The Company shall promptly furnish or otherwise make available to Parent and Acquisition Sub or Parent’s legal counsel all information concerning the Company and its Subsidiaries and Stockholders that may be required in connection with any action contemplated by this Section 2.01(h), including communicating the Offer to the record and beneficial holders of the Shares. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Acquisition Sub shall give reasonable and agree to consider in good faith consideration to any comments made by the Company and its counselsuch comments. Parent and Merger Acquisition Sub shall agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Acquisition Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of such comments. Parent and Merger Acquisition Sub shall respond promptly to those any comments and of the SEC or its staff with respect to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub the Offer Documents or their counsel in any discussions or meetings with the SECOffer.
(gi) Parent shall cause to be provided to Merger Acquisition Sub on a timely basis all of the funds necessary to purchase any Company Shares that Merger Acquisition Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Athlon Energy Inc.), Merger Agreement (Encana Corp)
The Offer. (a) Prior Provided that nothing shall have occurred that would give rise to the date of this Agreement, Merger Sub (i) commenced a right to terminate the Offer (the date pursuant to any of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than five Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $89.50 per Share, net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I hereto and no others, (iii) provide that the expiration date shall be February 7, 2008 and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents at least a majority of the total number of Shares outstanding on a fully-diluted basis (the “Offer ConditionsMinimum Condition”)) and to the other conditions set forth in Annex I and to no other conditions. Merger Sub Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change other changes in the terms of or conditions to the Offer; provided that, that without the prior written consent of the Company, Merger Sub shall not:
Company (iwhich consent may be granted or withheld by the Company in its sole discretion) waive or change (A) the Minimum Condition may not be waived, (as defined in Annex I);
(iiB) decrease the Offer Price;
(iii) no change may be made that changes the form of consideration to be paid in paid, decreases the Offer;
(iv) decrease price per Share or the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions , amends or other requirements adds to the Offer;
(vi) otherwise amend, modify or supplement any of conditions to the Offer Conditions set forth in Annex I or terms amends any other term of the Offer in a any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders stockholders of the Company Shares; or
and (viiC) extend or otherwise change the expiration date of the Offer in a manner other than shall not be extended except as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Dateotherwise provided herein. Notwithstanding the foregoing, without the consent of the Company, (x) Merger Sub Subsidiary shall have the right to extend the Offer (i) from time to time if, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been be satisfied or waived, from time to time until such Offer Conditions conditions are satisfied or waived (if permitted hereunder) waived; and (iiy) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof Nasdaq Global Select Market applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, that in each case, (i) no event shall Merger Sub shall not Subsidiary be required to extend the Offer beyond the earlier of (x) End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 10.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business DaysDate. Following expiration of the Offer, Merger Sub Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange 1934 Act.
(d) . Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and conditions set forth in this Agreement and subject to the satisfaction or waiver (if permitted hereunder) conditions of the Offer ConditionsOffer, Merger Sub Subsidiary shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods)Offer, all Company Shares (1) validly tendered and not withdrawn pursuant to the Offer and (ii2) all Company Shares validly tendered in the Subsequent Offering Period (the time at date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offerpayment, the “Acceptance Date”). The obligation .
(b) As promptly as practicable after the date hereof, but in no event later than five Business Days following the public announcement of the execution of this Agreement, Merger Sub (and of Parent to cause Merger Sub) to accept for paymentSubsidiary shall, and pay shall cause its Affiliates to, (i) file with the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal and summary advertisement reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer shall be subject only to the satisfactionDocuments”), or waiver and (ii) to the extent permitted hereunder) required by Parent or Merger Subapplicable U.S. federal securities laws, of each of cause the Offer Conditions.
(e) Merger Sub shall not terminate the Offer prior Documents to any scheduled expiration date without the prior written consent be disseminated to holders of the Company except in the event that this Agreement is terminated in accordance with its terms.
(f) Shares. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have usedSubsidiary shall, and shall usecause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SECSEC and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Parent and Merger Sub Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that oral comments Parent, Merger Sub Subsidiary or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly promptly, but in no event later than twelve hours, after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECsuch comments.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Ventana Medical Systems Inc), Merger Agreement (Roche Holding LTD)
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Section 10.01, substantially concurrently with the date execution and delivery of this Agreement, Merger Sub Subsidiary shall amend the Offer to (i) commenced increase the Offer purchase price to $95.00 per Share, net to the seller in cash (the date of such commencement, the “Offer Commencement DatePrice”), ; (ii) filed with provide that the SEC a Tender Offer Statement on Schedule TO with respect conditions to the Offer (together with all amendments shall be as set forth in Annex I and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and no others; (iii) caused provide that the Offer Documents expiration date shall be March 25, 2009; and (iv) make such other amendments as are necessary or appropriate to be disseminated to holders of Company Shares conform to the extent required by applicable federal securities lawsrequirements of this Agreement.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change other changes in the terms of or conditions to the Offer; provided that, that without the prior written consent of the CompanyCompany (provided that such consent has been approved by the Special Committee), Merger Sub Subsidiary shall not:
(i) waive or change the Minimum amount or form of the consideration to be paid or the number of Shares sought in the Offer;
(ii) waive the Majority of the Minority Condition (as defined in Annex I);
(iiiii) decrease add to, amend, modify, supplement or otherwise change any of the conditions to the Offer Price;
(iii) change the form of consideration to be paid set forth in the OfferAnnex I;
(iv) decrease amend any other term of the number Offer in any manner adverse to the stockholders of the Company Shares sought in the Offer;(other than Parent and its Affiliates); or
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than except as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Dateotherwise provided herein. Notwithstanding the foregoing, without the consent of the Companyclause (v) above, Merger Sub Subsidiary shall have the right to (and Parent shall cause Merger Subsidiary to) extend the Offer (ix) from time to time iftime, at for successive periods not to exceed 10 business days each, until the conditions to the Offer are satisfied or waived if any of the conditions is not satisfied or waived on any scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (iiy) for any the minimum period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waivedLaw; provided that, that in each case, (i) no event shall Merger Sub shall not Subsidiary be required or permitted to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business DaysDate. Following expiration of the Offer, Merger Sub Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange 1934 Act.
(dc) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditionsconditions to the Offer, Merger Sub Subsidiary shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods)Offer, all Company Shares (i) validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the any Subsequent Offering Period (the time at date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offerpayment, the “Acceptance Date”). The obligation .
(d) Substantially concurrently with the execution and delivery of this Agreement, Merger Sub (and of Parent to cause Merger Sub) to accept for paymentSubsidiary shall, and pay shall cause its Affiliates to, file with the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer shall be subject only to the satisfactionDocuments”), or waiver (and to the extent permitted hereunder) required by Parent or applicable U.S. federal securities laws, Merger Sub, of each of Subsidiary shall cause the Offer Conditions.
(e) Merger Sub shall not terminate the Offer prior Documents to any scheduled expiration date without the prior written consent be promptly disseminated to holders of the Company except in the event that this Agreement is terminated in accordance with its terms.
(f) Shares. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have usedSubsidiary shall, and shall usecause its Affiliates to, their use reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company Company, the Special Committee and its their respective counsel shall be given a reasonable opportunity to review and comment on any change amendment to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub Subsidiary shall give reasonable and good faith consideration to any comments made by the Company Company, the Special Committee and its their respective counsel. Parent and Merger Sub Subsidiary shall provide the Company Company, the Special Committee and its their respective counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub Subsidiary or their respective Affiliates or 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 those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub Subsidiary or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Roche Investments USA Inc.), Merger Agreement (Genentech Inc)
The Offer. (a) Prior Subject to the date provisions of this Agreement, Merger as promptly as practicable but in no event later than May 25, 1999, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Exchange Act (i) commenced as hereinafter defined), the Offer. The initial expiration date of the Offer (shall be June 23, 1999. The obligation of Sub to, and of Parent to cause Sub to, commence the date of such commencementOffer and accept for payment, the “Offer Commencement Date”)and pay for, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect any Shares tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive Exhibit A, any of the Offer Conditions and to make any change which may be waived by Parent or Sub in the terms of or conditions to the Offertheir sole discretion; provided that, without the prior written consent of the Company, Merger Sub shall not:
not (i) waive or change the Minimum Condition (as defined in Annex IExhibit A);
, (ii) decrease reduce the number of Shares of Common Stock subject to the Offer, (iii) reduce the price per Share to be paid pursuant to the Offer, (iv) extend the Offer Price;
if all of the Offer conditions are satisfied or waived, (iiiv) change the form of consideration to be paid payable in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions , or other requirements to the Offer;
(vi) otherwise amend, modify add or supplement waive any term or condition of the Offer Conditions or terms of (including the Offer conditions set forth on Exhibit A) in a any manner that would adversely affects, or could reasonably be expected to adversely affect, the holders of affect the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer its stockholders in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Dateany material respect. Notwithstanding the foregoing, Sub may, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, if at the then scheduled or extended expiration date of the Offer, Offer any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) Sub's obligation to accept for payment and pay for shares of Common Stock shall not have been satisfied or waived, until the fifth business day after the date Sub reasonably believes to be the earliest date on which such Offer Conditions are satisfied or waived (if permitted hereunder) and conditions will be satisfied; (ii) for any period required by any rule, regulation, interpretation or position of the SEC (as hereinafter defined) or the its staff thereof applicable to the Offer Offer; or any (iii) for an aggregate period otherwise required by applicable Legal Requirementof not more than ten business days (for all such extensions) notwithstanding the satisfaction of all conditions to the Offer. If any of the Offer Conditions is not satisfied or waived on Parent and Sub agree that if at any scheduled expiration date of the Offer, Merger the Minimum Condition or the Regulatory Condition (as defined in Exhibit A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Exhibit A shall then be satisfied, at the request of the Company, Sub shall extend the OfferOffer from time to time, if, in subject to the determination right of Parent, such Sub or the Company to terminate this Agreement pursuant to the terms hereof. Parent and Sub further agree that in the event Sub wishes to terminate the Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, solely by reason of the condition described in each case, clause
(i) Merger of Exhibit A, Sub shall first extend the Offer for a minimum period of ten days, it being understood that, if at the end of such ten day period, a banking moratorium or suspension of payments in respect of banks in the United States shall be in effect, Sub shall then be entitled to terminate the Offer under the provisions of clause (i) of Exhibit A, provided, that Sub shall not be required to extend the Offer beyond more than once pursuant to this sentence. Notwithstanding anything to the earlier contrary contained herein, the parties further agree that, in the event that upon any scheduled expiration date of the Offer (or any extension thereof), (x) all conditions to the End Date Offer set forth in Exhibit A to this Agreement have been satisfied and (y) the date that is 30 for a period of five consecutive trading days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are prior to be satisfied at the expiration of the OfferOffer (or any extension thereof), the average of the daily closing values of the Standard & Poor's Index of 500 Industrial Companies (the "S&P Index") have been satisfied or, for such five trading days shall reflect a decline in excess of 25% as compared to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension closing value of the Offer S&P Index on the close of business on the trading day next preceding the date of the Merger Agreement, then Sub shall be entitled to extend the Offer for a period of more than five Business Daysnot to exceed eight trading days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions of the Offer set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer ConditionsExhibit A, Merger Sub shall, and Parent shall cause it Sub to, consummate the Offer in accordance with its terms and accept pay for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and as soon as practicable after the expiration of the Offer.
(iib) all Company Shares validly tendered in On the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under date of commencement of the Offer, Parent and Sub shall file with the “Acceptance Time” Securities and Exchange Commission (the date "SEC") a Tender Offer Statement on which Company Shares are first accepted for payment under Schedule 14D-1 with respect to the Offer, which shall contain (included as an Exhibit) or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the “Acceptance Date”documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The obligation Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC. The Offer Documents shall comply as to form in all material respects with the requirements of Merger Sub the Securities Exchange Act of 1934, as amended (including the rules and of Parent to cause Merger Sub) to accept for paymentregulations promulgated thereunder, the "Exchange Act"), and pay on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, the Offer Price forDocuments 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, each Company Share validly tendered and in light of the circumstances under which they were made, not properly withdrawn pursuant to the Offer shall be subject only to the satisfactionmisleading, or waiver (to the extent permitted hereunder) except that no representation is made by Parent or Merger SubSub with respect to information supplied by the Company in writing, of each of expressly for inclusion in the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and each of Parent and Merger Sub have used, and shall use, their reasonable best efforts further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration agree to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel in writing with (i) copies of any written comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECDocuments.
(gc) Prior to or concurrently with the expiration of the Offer, Parent shall provide or cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Floss Acquisitions Corp), Merger Agreement (First Commonwealth Inc)
The Offer. (a) Prior Subject to the provisions of this Agreement, as promptly as practicable, and in any event no more than ten (10) Business Days, after the date of this Agreement, Merger Sub (i) commenced Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence, within the Offer (meaning of Rule l4d-2 under the date of such commencementExchange Act, the “Offer Commencement Date”)Offer. The obligation of Merger Subsidiary to, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect and of Parent to the Offer (together with all amendments cause Merger Subsidiary to, accept for payment and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with pay for any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to Shares tendered shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the satisfaction of the conditions set forth in Annex I hereto (A and to the “Offer Conditions”). terms and conditions of this Agreement; provided that Parent and Merger Sub expressly reserves the right to Subsidiary may waive any of the conditions to the Offer Conditions (except for the Minimum Tender Condition which may not be waived without the prior written consent of the Company) and to may make any change changes in the terms and conditions of or conditions to the Offer; provided Offer except that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or no change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change may be made to the form of consideration to be paid paid, (ii) no decrease in the Offer;
(iv) decrease Offer Price or the number of Company Shares sought in the Offer;
Offer may be made, (viii) impose no change which imposes additional Offer Conditions or other requirements conditions to the Offer;
(vi) otherwise amend, modify Offer or supplement modifies any of the Offer Conditions or terms of the Offer conditions set forth in a Annex A in any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; or
Shares may be made and (viiiv) neither Parent nor Merger Subsidiary may extend or otherwise change the expiration date of the Offer Offer, except in a manner other than as contemplated by this Agreementaccordance with Section 2.1(c).
(cb) Unless extended pursuant to and in accordance with On the terms date of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date commencement of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) Parent and Merger Subsidiary shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of file with the SEC or the staff thereof applicable to the a Tender Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived Statement on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, Schedule TO (as amended and supplemented from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided thattime, the “Schedule TO”), which shall comply in each case, (i) Merger Sub shall not be required to extend all material respects with the Offer beyond the earlier provisions of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shallapplicable federal securities Laws, and Parent shall cause it to, consummate contain the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant offer to purchase relating to the Offer and forms of the related letter of transmittal and other appropriate documents (ii) all Company Shares validly tendered in the Subsequent Offering Period (the which documents, as amended or supplemented from time at which Company Shares to time, are first accepted for payment under the Offer, referred to herein collectively as the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance DateOffer Documents”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts Subsidiary further agree to cause the Schedule TO as so corrected to be filed with the SEC and disseminate the Offer Documents as so corrected to be disseminated to holders of Shares, in each case Shares as and to the extent required by applicable federal securities lawsLaws. In conducting the Offer, Parent and Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.1. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Sub Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall Subsidiary agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time be received from the SEC or its staff (whether written or oral) with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications thereof and prior to responding thereto and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub Subsidiary to those these comments and to provide comments on that response (to which reasonable and good faith consideration shall be given). Each of Parent, including Merger Subsidiary and the Company agrees promptly to correct any information provided by participating with it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent and Merger Sub or their counsel in any discussions or meetings Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SECSEC and be disseminated to holders of Shares, in each case, as and to the extent required by Law.
(gc) The initial scheduled expiration date of the Offer shall be 12:01 a.m., New York City time, on the twenty-sixth (26th) Business Day after (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) the date of its commencement (such initial date, or if and only if the expiration time and date is extended as authorized in this Agreement, such time and date as so extended, the “Expiration Date”); provided, however, that Merger Subsidiary: (i) may, at the sole discretion of Merger Subsidiary, or, if requested by the Company no later than one (1) hour after the Expiration Date, shall, from time to time extend the Offer for one or more periods of up to ten (10) Business Days each, the length of each such period to be determined by Merger Subsidiary in its sole discretion, if at the scheduled Expiration Date any of the conditions of the Offer, including the Minimum Tender Condition and the conditions and requirements set forth on Annex A (other than conditions which by their nature are to be satisfied at the closing of the Offer), shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement, provided, however, that the Merger Subsidiary shall not be required to extend the Offer if any of the conditions or requirements in paragraphs (iv)(a) or (iv)(e) of Annex A are not satisfied or if the Parent or Merger Subsidiary are then entitled to terminate this Agreement pursuant to Article VIII, (ii) shall extend the Offer for any period required by any rule, Regulation, interpretation or position of the SEC or the Stock Exchange or the staffs thereof applicable to the Offer and (iii) shall, in the event that the Marketing Period Condition is not satisfied or waived as of any then scheduled expiration of the Offer, extend the Offer to the date that is first (1st) Business Day after the scheduled end of the Marketing Period, unless the Marketing Period Condition is waived by Parent. Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the Expiration Date.
(d) Notwithstanding the above, in no event shall Merger Subsidiary be required to, or shall Parent be required to cause Merger Subsidiary to, extend the Offer beyond the earliest to occur of (x) the valid termination of this Agreement in compliance with Section 8.1 and (y) the End Date (as defined in Section 8.1(b)(i)). In no event shall Merger Subsidiary extend the Offer beyond the End Date without the consent of the Company. The Offer may not be terminated prior to its scheduled Expiration Date (as it may be extended in accordance with this Agreement) unless this Agreement is terminated in accordance with Section 8.1.
(e) Parent shall provide or cause to be provided to Merger Sub all of Subsidiary on a timely basis the funds necessary to purchase any Company Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer, Offer and shall cause Merger Sub Subsidiary to perform, on a timely basis, fulfill all of Merger Sub’s its covenants, agreements and obligations under in respect of the Offer and this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Wabash National Corp /De), Merger Agreement (Supreme Industries Inc)
The Offer. (a) Prior to The Primary Borrower, Finc▇ ▇ ▇nd Bidco each undertake with each of the date of this AgreementFinance Parties that it shall (or shall procure that Bidco shall, Merger Sub as applicable):
(i) commenced until the earlier of the date the Offer lapses or is finally closed, comply in all material respects with the Code, the Financial Services Act ▇▇▇▇ ▇▇▇ the Act and all other applicable laws and regulations relevant in the context of the Offer;
(ii) provide the Facility Agent with such information regarding the progress of the Offer as it may reasonably request and, provided no breach of the Code would result, all material written advice given to it in respect of the Offer; 58 - ▇▇ -
(▇▇▇) not declare the Offer unconditional at a level of acceptances below that required by Rule 10 of the Code;
(iv) 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 Code in respect of the Target Shares;
(v) not, without the prior consent of the Arrangers (acting on the instructions of the Majority Banks), waive, amend or agree or decide not to enforce, in whole or in part, the conditions of the Offer set out in paragraphs (c) (Referral) or (b) (Coalco Disposal Agreement) of Appendix 1 to the Press Release;
(vi) not, without the prior consent of the Arrangers (acting on the instructions of the Majority Banks), such consent not to be unreasonably withheld or delayed, waive, amend (but not including extending the Offer period, which shall be at the Primary Borrower's discretion provided that the Offer is closed within the period required by clause 10.4(f) below) 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 (and the date Primary Borrower, Finc▇ ▇ ▇nd Bidco acknowledge that the total Indebtedness of such commencementthe Target Group requiring to be refinanced, and the “amount of any contingent liabilities of the Target Group which would or might crystallise upon the Offer Commencement Date”becoming unconditional, are material), provided that the Primary Borrower, Finc▇ ▇ ▇nd Bidco shall not be in breach of this clause (iivi) filed with the SEC if they fail to invoke a Tender Offer Statement on Schedule TO with respect to condition of the Offer (together with all amendments and supplements thereto and including exhibits thereto, because the “Schedule TO”) Takeover Panel has directed that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawsthey may not do so.
(b) The Offer is subject only Each of the Primary Borrower, Finc▇ ▇ ▇nd Bidco acknowledges and confirms to the Finance Parties that if any event or circumstance occurs which under the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions may entitle Bidco to lapse the Offer, Bidco will promptly notify the Facility Agent and to make any change if in the terms reasonable opinion of the Majority Banks such event or conditions circumstance would have a material and adverse affect on the ability of the Borrowers to comply with their material obligations under this Agreement (or the Offer; provided thatadequacy of the facilities available for refinancing indebtedness or other liabilities of the Target Group) and the Facility Agent acting on the instructions of the Majority Banks so requests, without Bidco will promptly seek the prior written consent of the CompanyTakeover Panel to lapse the Offer. If the Takeover Panel consents to Bidco's lapsing the Offer in the light of such event or circumstance, Merger Sub Bidco shall notthen lapse the Offer promptly.
(c) Each of the Primary Borrower, Finc▇ ▇ ▇nd Bidco shall keep the Arrangers informed and consult with them as to:
(i) waive the terms of any undertaking or change assurance proposed to be given by it, any of its Affiliates or any member of the Minimum Condition (as defined Target Group to the Director General, the Director General of Gas Supply or the Secretary of State for Trade and Industry in Annex I)connection with the Offer;
(ii) decrease the Offer Priceterms of any modification to any of the Licences proposed in connection with the Offer;
(iii) change the form of consideration to be paid any terms proposed in connection with any authorisation or determination necessary or appropriate in connection with the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any ; of the Offer Conditions or terms as a result of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders non-satisfaction of whichever of the Company Shares; or
(vii) extend conditions in Appendix 1 to the Press Release is relevant, provided that Bidco will not be obliged to lapse the Offer as a result of any proposed modifications of any Licence or otherwise change any proposed undertakings or assurances from the expiration date Primary Borrower, Finc▇ ▇, Bidco or any member of the Offer in a manner other Target Group to be given to the Director General to the extent that such modifications, undertakings or assurances (as the case may be) are no more onerous than as contemplated those set out and required by this Agreement.
(c) Unless extended pursuant to and the Director General from Pacificorp and/or the Target Group in accordance with the terms of this Agreementthe Monopolies and Mergers Commission Report dated 19 December 1997 into the original Pacificorp offer for the Target. If the Takeover Panel gives a confirmation substantially in those terms, Bidco shall at the earliest opportunity declare the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent lapsed by reason of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date non- fulfilment of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Actcondition(s).
(d) Subject Each of the Primary Borrower, Finc▇ ▇ ▇nd Bidco acknowledges and confirms to the terms Finance Parties that the Offer, or an accompanying circular to shareholders of the Target, should also contain a super class one resolution to be passed by the shareholders of the Target, seeking approval of the completion of the Coalco Disposal Agreement with effect on and conditions set forth from the Unconditional Date. Where the context permits, all references in this Agreement (and to in the satisfaction or waiver (if permitted hereunderOffer) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first being accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer and/or becoming unconditional shall be subject only construed to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditionsinclude such approval being granted.
(e) Merger Sub shall not terminate Each of the Primary Borrower, Finc▇ ▇ ▇nd Bidco undertakes to the Finance Parties that within 15 days of the date on which acceptances of the Offer prior to any scheduled expiration date without the prior written consent are received from holders of not less than 90% of the Company except in Target Shares to which the event Offer relates, Bidco shall procure that this Agreement is terminated in accordance with its termsa director of Bidco issues a statutory declaration pursuant to section 429(4) of the Companies Act ▇▇▇▇, ▇▇ves notice to all remaining holders of the Target Shares that it intends to acquire their shares pursuant to section 429 of the Companies Act ▇▇▇▇, ▇▇d Bidco shall subsequently purchase all such shares.
(f) Each of Parentthe Primary Borrower, Merger Sub and Finc▇ ▇ ▇nd Bidco undertakes to the Company agrees promptly Finance Parties that Bidco shall in any event give notice to correct any information provided by it for use in the Schedule TO and close the Offer Documents if and to no later than 120 days after the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders date of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement, unless the Arrangers agree in their absolute discretion to extend such period.
Appears in 2 contracts
Sources: Facilities Agreement (Texas Utilities Co /Tx/), Facilities Agreement (Tu Acquisitions PLC)
The Offer. The Holdings Borrower shall:
(a) Prior to the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed comply with the SEC a Tender Offer Statement on Schedule TO Financial Services Act of 1986 and the Companies Act 1985 and all other applicable laws and regulations relevant in ▇▇▇ ▇▇▇▇ext of the Recommended Cash Offers, including (subject to any waivers by the Panel) compliance in all material respects with respect to the Offer (together with all amendments Code and supplements thereto and including exhibits thereto, the “Schedule TO”) that included Listing Rules of the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.London Stock Exchange;
(b) The Offer is subject only provide the Administrative Agent (in sufficient copies for the Lenders) with copies of all material documents, notices or announcements received or issued by it in relation to the conditions set forth in Annex I hereto Recommended Cash Offers (whether dated or issued after or on or before the “Offer Conditions”). Merger Sub expressly reserves date hereof) and with such other information regarding the right to waive any progress 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (Recommended Cash Offers as defined in Annex I)it may reasonably request;
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended save as required by the Code or any law or regulation, not issue any press release or make any statement or announcement during the course of the Recommended Cash Offers which contains any information or statement concerning the Credit Documents or the Finance Parties without first obtaining the prior approval of the information or statement from the Administrative Agent;
(d) promptly give notices under Section 429 of the Companies Act 1985 in respect of the Ordinary Shares upon the conditions cont▇▇▇▇▇ ▇▇ the Companies Act 1985 for the giving of those notices being satisfied;
(e) not increase the price per Share under the Recommended Cash Offers above the level agreed between the Holdings Borrower and the Lender from time to time unless required by law or by order of court;
(f) not waive any condition, or amend any material term or condition of the Recommended Cash Offers unless the Administrative Agent has given its prior consent, provided that the Administrative Agent shall consent in respect of any waiver the Panel requires the Holding Borrower to give pursuant to and in accordance with Rule 13 of the terms of this Agreement, the Offer shall expire at midnight Code;
(New York City timeg) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoingnot, without the consent of the CompanyAdministrative Agent, Merger Sub shall declare the Recommended Cash offers unconditional as to acceptances unless valid acceptances of the Recommended Cash Offers have been received in respect of Shares which amount to more than 90 per cent of the right Shares (and comprising more than 90 per cent of the voting rights attaching to extend all shares in the Offer (iSterling Borrower) from time to time if, in issue at the scheduled or extended expiration date of the Offer, such declaration; and
(h) not purchase any Shares if to do so would mean that it must make a mandatory offer under Rule 9 of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange ActCode.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Catalina Lighting Inc), Revolving Credit and Term Loan Agreement (Catalina Lighting Inc)
The Offer. Section 1.1.1 Provided that this Agreement shall not have been terminated in accordance with Article 7 hereof and none of the events set forth in Annex I hereto (athe "Tender Offer Conditions") Prior shall have occurred, Parent shall cause the Purchaser to (A) 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")) as promptly as practicable (and in any event within five business days after the date of this Agreement), Merger Sub (i) commenced an offer to purchase all outstanding Shares at the Offer (the date of such commencement, the “Offer Commencement Date”)Price, (iiB) filed with after affording the SEC Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO and all other necessary documents with respect to 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 Rule 14d-4 under the Exchange Act in each case in connection with the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “"Offer Documents”") and (iiiC) caused the Offer Documents use reasonable efforts to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of consummate the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject subject to the terms and conditions set forth in this Agreement thereof. Each of Parent and to the satisfaction or waiver (if permitted hereunder) of Purchaser, on the Offer Conditions, Merger Sub shallone hand, and Parent shall cause it tothe Company, consummate on the Offer in accordance with its terms and accept for payment and pay forother hand, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts the Purchaser further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all obligation of the funds necessary Purchaser to purchase accept for payment or pay for any Company Shares that Merger Sub becomes obligated to purchase tendered pursuant to the Offer will be subject only to the satisfaction of the Tender Offer Conditions.
Section 1.1.2 Without the prior written consent of the Company, the Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, waive the Minimum Condition, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Shares. The Offer shall remain open until the date that is 20 business days (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer (the "Expiration Date"), unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the terms of this Agreement or as may be required by applicable law, in which event the term "Expiration Date" shall mean the latest time and date as the Offer, as so extended, may expire. If, at any Expiration Date, any of the Tender Offer Conditions are not satisfied or waived by the Purchaser, the Purchaser may, but shall not be required to, extend the Offer; provided, however, if the Offer shall not have been consummated at the Expiration Date due to the failure to satisfy the condition to the Offer relating to the expiration of the waiting period under the HSR Act or under any applicable foreign antitrust statutes or regulations, Parent will, at the request of the Company, cause Merger Sub the Purchaser to performextend the Expiration Date for one or more periods (not in excess of ten business days each) but in no event later than December 23, on 2002. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, the Purchaser will accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after such Expiration Date. The Purchaser may, but shall not be required to, provide a timely basissubsequent offering period after the Expiration Date, all of Merger Sub’s obligations in accordance with Rule 14d-11 under this Agreementthe Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Innoveda Inc), Merger Agreement (Mentor Graphics Corp)
The Offer. (a) Prior Provided that nothing shall have occurred that would give rise to the date of this Agreement, Merger Sub (i) commenced a right to terminate the Offer (the date pursuant to any of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than five Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $89.50 per Share, net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I hereto and no others, (iii) provide that the expiration date shall be February 7, 2008 and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents at least a majority of the total number of Shares outstanding on a fully-diluted basis (the “Offer ConditionsMinimum Condition”)) and to the other conditions set forth in Annex I and to no other conditions. Merger Sub Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change other changes in the terms of or conditions to the Offer; provided that, that without the prior written consent of the Company, Merger Sub shall not:
Company (iwhich consent may be granted or withheld by the Company in its sole discretion) waive or change (A) the Minimum Condition may not be waived, (as defined in Annex I);
(iiB) decrease the Offer Price;
(iii) no change may be made that changes the form of consideration to be paid in paid, decreases the Offer;
(iv) decrease price per Share or the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions , amends or other requirements adds to the Offer;
(vi) otherwise amend, modify or supplement any of conditions to the Offer Conditions set forth in Annex I or terms amends any other term of the Offer in a any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders stockholders of the Company Shares; or
and (viiC) extend or otherwise change the expiration date of the Offer in a manner other than shall not be extended except as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Dateotherwise provided herein. Notwithstanding the foregoing, without the consent of the Company, (x) Merger Sub Subsidiary shall have the right to extend the Offer (i) from time to time if, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been be satisfied or waived, from time to time until such Offer Conditions conditions are satisfied or waived (if permitted hereunder) waived; and (iiy) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof Nasdaq Global Select Market applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, that in each case, (i) no event shall Merger Sub shall not Subsidiary be required to extend the Offer beyond the earlier of (x) End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 10.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business DaysDate. Following expiration of the Offer, Merger Sub Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with 2 Table of Contents Rule 14d-11 of the Exchange 1934 Act.
(d) . Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and conditions set forth in this Agreement and subject to the satisfaction or waiver (if permitted hereunder) conditions of the Offer ConditionsOffer, Merger Sub Subsidiary shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods)Offer, all Company Shares (1) validly tendered and not withdrawn pursuant to the Offer and (ii2) all Company Shares validly tendered in the Subsequent Offering Period (the time at date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offerpayment, the “Acceptance Date”). The obligation .
(b) As promptly as practicable after the date hereof, but in no event later than five Business Days following the public announcement of the execution of this Agreement, Merger Sub (and of Parent to cause Merger Sub) to accept for paymentSubsidiary shall, and pay shall cause its Affiliates to, (i) file with the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal and summary advertisement reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer shall be subject only to the satisfactionDocuments”), or waiver and (ii) to the extent permitted hereunder) required by Parent or Merger Subapplicable U.S. federal securities laws, of each of cause the Offer Conditions.
(e) Merger Sub shall not terminate the Offer prior Documents to any scheduled expiration date without the prior written consent be disseminated to holders of the Company except in the event that this Agreement is terminated in accordance with its terms.
(f) Shares. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have usedSubsidiary shall, and shall usecause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SECSEC and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Parent and Merger Sub Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that oral comments Parent, Merger Sub Subsidiary or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly promptly, but in no event later than twelve hours, after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECsuch comments.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to Provided that this Agreement has not been terminated in accordance with Article 8, as promptly as practicable after the date of this Agreement, Merger Sub but in no event more than ten (i10) commenced the Offer (Business Days after the date of such commencementthis Agreement, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) Upon the terms and subject to the conditions set forth in this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Purchaser of the other conditions set forth in Annex I (collectively, the “Offer Commencement DateConditions”), Purchaser shall (and Parent shall cause Purchaser to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment and promptly thereafter (and in any event within three (3) Business Days of the Expiration Date) pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) filed waive any Offer Condition other than the Minimum Condition, and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company (which the Company may withhold in its sole discretion), Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares subject to the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in any manner that adversely affects holders of Shares, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and Purchaser may waive the Minimum Condition only with the prior written consent of the Company, which may be granted or withheld in the Company’s sole discretion. The Offer may not be terminated or withdrawn prior to the Expiration Date, unless this Agreement is terminated in accordance with Article 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (i.e., one minute after 11:59 pm) (New York City time) on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer is first commenced (within the meaning of Rule 14d-2 under the Exchange Act), or, in the event the Offer has been extended beyond the initial expiration date pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (such initial expiration date, or such later date and time to which the Offer has been extended pursuant to and in accordance with this Agreement, the “Expiration Date”).
(e) Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from time to time as follows: (i) if on the applicable Expiration Date, any of the Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Purchaser pursuant to this Agreement, waived by Parent or Purchaser, then Purchaser shall extend the Offer for successive periods of not more than ten (10) Business Days each (as determined by Purchaser), or such other period as may be agreed by Parent and the Company, to permit the satisfaction of such Offer Conditions; and (ii) Purchaser shall extend the Offer for the minimum period required by applicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) shall (A) require Purchaser to, and without the Company’s prior written consent Purchaser shall not be permitted to, extend the Offer beyond the End Date, or (B) be deemed to impair, limit or otherwise restrict in any manner the right of the parties to terminate this Agreement pursuant to the terms of Section 8.1. Neither Parent nor Purchaser shall extend the Offer in any manner other than pursuant to and in accordance with the provisions of this Section 1.1(e) without the prior written consent of the Company.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock but excluding vesting of Company Stock Options, Company Restricted Stock Awards or Other Company Stock-Based Awards), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action, including with respect to its securities, that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Purchaser shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement is terminated pursuant to the terms hereof, then 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, shall not acquire any Shares pursuant to the Offer, and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all tendered Shares to the registered holders thereof.
(h) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, shall contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement advertisement, if any, and any other ancillary Offer documents and instruments pursuant to which the Offer shall be made and (collectivelyii) cause the Offer to Purchase and related documents to be disseminated to all holders of Shares. Parent and Purchaser agree that they shall cause the Schedule TO and all exhibits, together with any amendments or supplements theretothereto (collectively, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required filed by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions and to make any change in the terms of either Parent or conditions to the Offer; provided that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance Purchaser with the terms of this Agreement, SEC to comply in all material respects with the Offer shall expire at midnight (New York City time) on Exchange Act and the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (rules and regulations thereunder and other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal RequirementRequirements. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub Purchaser and the Company agrees shall promptly to correct any information provided by it or any of its Representatives for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and to supplement the information contained in the Offer Documents to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Sub have used, and Purchaser further shall use, their use reasonable best efforts to promptly cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLegal Requirements. The Company shall promptly furnish or otherwise make available in writing to Parent and Purchaser or Parent’s legal counsel all information concerning the Acquired Companies and the Company’s stockholders that is required or is reasonably requested by Parent to be included in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, SEC and Parent and Merger Sub Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counselsuch comments. Parent and Merger Sub shall Purchaser agree to provide the Company and its counsel with (i) any comments or other communications, (whether written or oral, that ) Parent, Merger Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Sub Purchaser shall respond promptly to those any comments and of the SEC or its staff with respect to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub the Offer Documents or their counsel the Offer in any discussions or meetings coordination with the SECCompany.
(gi) Parent shall cause to be provided to Merger Sub Purchaser on a timely basis all of the funds necessary to purchase any Company Shares that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub Purchaser to perform, to the extent required and on a timely basis, all of Merger SubPurchaser’s obligations under this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Rightside Group, Ltd.)
The Offer. (a) Prior Provided that nothing shall have occurred that would result in a failure to the date satisfy any of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto hereto, as ------- promptly as practicable after the date hereof, 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 cash (the “Offer Conditions”"Offer"). The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then beneficially owned by Parent, Merger Sub Subsidiary and Saint-Gobain, represents at least a majority of the total number of outstanding Shares on a fully diluted basis (including the exercise of all outstanding options) (the "Minimum Condition") and to the other conditions set forth in Annex I hereto. Merger Subsidiary expressly reserves the right to ------- waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to of the Offer; , provided that, no change or waiver may be made that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change waives the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change Condition, changes the form of consideration to be paid in paid, decreases the Offer;
(iv) decrease price per Share or the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements imposes conditions to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected addition to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer those set forth in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Annex I. Notwithstanding the foregoing, without the consent of the Company, ------- Merger Sub Subsidiary shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions conditions are satisfied or waived (if permitted hereunder) and (ii) waived; provided that Merger Subsidiary may extend the Offer under this clause for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirementlaw. If any all of the conditions to the Offer Conditions is are not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub Subsidiary shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions conditions are satisfied or waivedwaived (but not beyond July 31, 2000); provided thatthat (w) such conditions are reasonably capable of being satisfied, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and Company exercises its reasonable best efforts to cause such conditions to be satisfied, (y) an Acquisition Proposal shall not have been publicly announced and not withdrawn as of such scheduled expiration date and (z) the date that Company is 30 days after the date that in compliance with all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, its covenants in this Agreement. Subject to the extent permissible, have been waived by Merger Sub foregoing and (ii) no such individual extension of to the Offer shall be for a period of more than five Business Days. Following expiration terms and conditions of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub Subsidiary shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods)Offer, all Company Shares validly properly tendered and not withdrawn pursuant to the Offer and (ii) all Company that Merger Subsidiary is obligated to purchase. Parent shall provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to pay for any Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of that Merger Sub (and of Parent to cause Merger Sub) Subsidiary becomes obligated to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer ConditionsOffer.
(eb) As soon as practicable after the date hereof, Parent and Merger Sub Subsidiary shall not terminate amend their Tender Offer Statement on Schedule TO (the "Schedule TO") with respect to the Offer, which will contain a supplement to the offer to purchase and a revised letter of transmittal (the Schedule TO and all documents included therein pursuant to which the Offer prior to will be made, together with any scheduled expiration date without supplements or amendments thereto, the prior written consent of the Company except in the event that this Agreement is terminated in accordance with its terms.
(f) Each of Parent, Merger Sub "Offer Documents"). Parent and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on any change to the amended Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration prior to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECbeing filed.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to Not later than the first business day after the date of this Agreement, Merger Sub (i) commenced ACQUIROR, Acquisition Subsidiary and EKCO will make a public announcement of the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawsOffer.
(b) The Offer is subject only to Provided that this Agreement shall not have been terminated in accordance with Section 7.1 and none of the conditions events set forth in Annex I ANNEX A hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions and to make any change in the terms of shall have occurred or conditions to the Offer; provided thatbe existing, without the prior written consent of the CompanyAcquisition Subsidiary shall commence, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreementhereof, the Offer and ACQUIROR shall expire at midnight cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, as amended, including the rules and regulations promulgated thereunder (New York City time) on the twentieth Business Day after "Exchange Act"), the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could as promptly as reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days practicable after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied orhereof, to the extent permissible, have been waived by Merger Sub and (ii) but in no such individual extension of the Offer shall be for a period of more event later than five Business Days. Following expiration of the Offer, Merger Sub may, (5) business days (as such term is defined in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of 14d-1 under the Exchange Act.
(d) Subject after the initial public announcement of Acquisition Subsidiary's intention to commence the terms and conditions set forth in this Agreement and Offer. The obligation of Acquisition Subsidiary to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company for EKCO Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, satisfaction or waiver (other than a waiver of the Minimum Condition requirement) of the conditions set forth in ANNEX A hereto (unless the failure of any such condition was caused by any material breach by ACQUIROR or Acquisition Subsidiary of this Agreement in which case Acquisition Subsidiary shall be obligated to accept for payment and pay for EKCO Shares tendered pursuant to the extent permitted hereunderOffer provided that such failure has been waived by EKCO), including the condition that a number of EKCO Shares representing that number of EKCO Shares which would equal more than fifty percent (50%) by Parent or Merger Subof the voting power (determined on a fully-diluted basis), of each all the securities of EKCO entitled to voted generally in a merger shall have been validly tendered and not withdrawn prior to the expiration date of the Offer Conditions.
(e) Merger Sub shall not terminate the Offer prior "Minimum Condition"). Acquisition Subsidiary expressly reserves the right to waive any scheduled expiration date such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, without the prior written consent of EKCO, Acquisition Subsidiary will not (i) decrease the Company except Per Share Amount below $7.00 (ii) reduce the minimum number of EKCO Shares to be purchased in the event Offer, (iii) change the form of the consideration payable in the Offer (other than by adding consideration), (iv) add to, modify or supplement the conditions to the Offer set forth in ANNEX A hereto, (v) extend the expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein or (vi) make any other change in the terms or conditions of the Offer which is materially adverse to the holders of EKCO Shares, it being agreed that this Agreement is terminated a waiver by Acquisition Subsidiary of any condition in accordance with whole or in part (other than the Minimum Condition) at any time and from time to time in its terms.discretion shall not be deemed to be materially adverse to any holder of EKCO Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Acquisition Subsidiary shall, and ACQUIROR shall cause Acquisition Subsidiary to, accept for payment and pay, as promptly as practicable after expiration of the Offer, for all EKCO Shares validly tendered and not withdrawn; provided, that Acquisition Subsidiary shall have the right, in its sole discretion, to extend the Offer from time to time for up to a maximum of 15 business days, notwithstanding the prior satisfaction of the conditions contained in ANNEX A if on such expiration date there shall not have been tendered that number of EKCO Shares which would equal more than 90% of the issued and outstanding EKCO Shares (the "15 Day Right") and provided further, that if Acquisition Subsidiary shall extend the Offer pursuant to the 15 Day Right, Acquisition Subsidiary shall waive during such 15 business days all conditions set forth in ANNEX A other than the Minimum Condition and the conditions set forth in paragraphs (a), (b) and (d) in ANNEX A.
(fc) Each On the date of Parentcommencement of the Offer, Merger Sub ACQUIROR and Acquisition Subsidiary shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1, including all exhibits thereto (together with all amendments and supplements thereto, the "Schedule 14D-1"), with respect to the Offer. The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the Company agrees forms of related Letters of Transmittal as well as all other information and exhibits required by law (the Schedule 14D-1, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to EKCO'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 ACQUIROR and Acquisition Subsidiary with respect to information supplied by EKCO for inclusion in the Offer Documents. ACQUIROR, Acquisition Subsidiary and EKCO shall correct promptly to correct any information provided by it any of them for use in the Schedule TO and the Offer Documents if and to the extent that such information which shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have usedmisleading, and ACQUIROR and Acquisition Subsidiary shall use, their reasonable best efforts take all steps necessary to cause the Schedule TO 14D-1, as so corrected corrected, to be filed with the SEC and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of EKCO Shares, in each case as and to the extent required by applicable federal securities laws. The Company EKCO and its counsel shall be given a the reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, . ACQUIROR and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub Acquisition Subsidiary shall provide the Company EKCO and its counsel with (i) a copy of any written comments or other communications, whether written telephonic notification of any oral comments ACQUIROR or oral, that Parent, Merger Sub or their counsel Acquisition Subsidiary may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt thereof. In the event that ACQUIROR or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond promptly to such comments and take all other actions necessary to resolve the issues raised therein.
(i) Subject to the terms and conditions hereof, the Offer shall initially remain open until midnight, New York City time, on the date that is twenty (20) business days after the Offer is commenced (within the meaning of those comments or other communications and Rule 14d-2 under the Exchange Act) (the "Initial Expiration Date").
(ii) a reasonable opportunity If Acquisition Subsidiary does not consummate the Offer on the Initial Expiration Date due to participate the failure of one or more conditions in ANNEX A to be satisfied, Acquisition Subsidiary shall extend the response Offer one or more times until the earlier of Parent and Merger Sub (x) 11:59 p.m. New York time on the 60th calendar day after the date of this Agreement or (y) two business days after such time as such condition or conditions are satisfied or waived; PROVIDED that Acquisition Subsidiary shall not be obligated to those comments and extend the Offer pursuant to provide comments on this sentence if the condition that response has not been satisfied is not reasonably capable of being satisfied at or prior to the time referred to in clause (to which reasonable and good faith consideration x) above; provided, further, that nothing herein shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SECprohibit Acquisition Subsidiary from exercising its 15 Day Right.
(giii) Parent shall cause If Acquisition Subsidiary does not consummate the Offer on or prior to the 60th calendar day after the date of this Agreement due to the failure of one or more conditions in ANNEX A to be provided satisfied, and if such unsatisfied condition or conditions are reasonably capable of being satisfied, Acquisition Subsidiary shall, at the request of EKCO, extend the Offer one or more times until the earlier of (x) 11:59 p.m. New York time on the 120th calendar day after the date of this Agreement or (y) two business days after such time as such condition or conditions are satisfied or waived; provided, further, that nothing herein shall prohibit Acquisition Subsidiary from exercising its 15 Day Right.
(iv) If Acquisition Subsidiary does not consummate the Offer on or prior to Merger Sub the 60th calendar day after the date of this Agreement due to the failure of one or more conditions in ANNEX A to be satisfied, and if such unsatisfied condition or conditions are reasonably capable of being satisfied, Acquisition Subsidiary may extend the Offer one or more times until (a) the 120th calendar day after the date of this Agreement or (b) until the 180th calendar day after the date of this Agreement if the Offer shall not have been consummated solely due to the waiting period (or any extension thereof) or approvals under the HSR Act or any applicable foreign competition laws not having expired or been terminated or received.
(v) Acquisition Subsidiary may at any time transfer or assign to ACQUIROR or to one or more corporations, 80% or more of the outstanding capital stock of which is directly or indirectly owned by ACQUIROR, the right to purchase all of the funds necessary to purchase any Company EKCO Shares that Merger Sub becomes obligated to purchase tendered pursuant to the Offer, but any such transfer or assignment shall not relieve ACQUIROR or Acquisition Subsidiary of its obligations hereunder or prejudice the rights of stockholders or holders of EKCO Options or EKCO Warrants to receive payment for EKCO Shares validly tendered and accepted for payment in the Offer or in the Merger or otherwise in accordance with the terms hereof. Any such assignee or transferee of Acquisition Subsidiary shall cause Merger Sub to perform, on a timely basis, assume all of Merger Sub’s the obligations under of Acquisition Subsidiary hereunder, and ACQUIROR and Acquisition Subsidiary shall amend this Agreement, at the request of EKCO, to substitute any such assignee or transferee for Acquisition Subsidiary in this Agreement.
(vi) Acquisition Subsidiary shall be obligated to consummate the Offer on the date (or no later than one business day after the date) that all of the conditions set forth in ANNEX A shall have been satisfied; provided, however, that nothing herein shall prohibit Acquisition Subsidiary from exercising its 15 Day Right.
Appears in 1 contract
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the date of this Agreement, Merger Sub events set forth in paragraphs (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii), (iii), (iv) filed with and (v) of Annex A hereto shall have occurred, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the SEC a Tender meaning of Rule 14d-2 under the Exchange Act) the Offer Statement on Schedule TO with respect as promptly as practicable following the date hereof and in any event within thirteen (13) Business Days after the date hereof. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment shares of Company Common Stock validly tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, to pay the Offer to Purchase Price for each such tendered and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to not subsequently withdrawn share shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the satisfaction or waiver by Parent or Merger Sub of the conditions set forth in Annex I hereto A (such conditions, as they may be amended in accordance with this Agreement, the “Tender Offer Conditions”). Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 2.1(b), to waive in whole or in part any of such condition, to increase the Offer Conditions Price payable in the Offer, and to make any change in other changes to the terms and conditions of or conditions to the Offer; provided thatprovided, however, that without the prior written consent of the Company, Merger Sub shall not:
not (i) amend or waive or change satisfaction of the Minimum Condition (as defined in Annex IA);
, (ii) decrease the Offer Price;
(iii) change the form of consideration to be paid pursuant to the Offer, (iii) decrease the Offer Price payable in the Offer;
, (iv) decrease the number of shares of Company Shares Common Stock sought to be purchased in the Offer;
, (v) impose additional Offer Conditions or other requirements conditions to the Offer;
Offer that are in addition to those set forth in Annex A hereto, (vi) otherwise amend, modify make any change in the Offer that would require an extension or supplement any delay of the then current Expiration Date; provided, however, that this clause (vi) shall not limit the ability of Parent or Merger Sub to extend the Expiration Date as required by Section 2.1(b); (vii) amend or modify the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition), or terms (viii) amend or modify any other term of the Offer in a any manner that adversely affects, or could reasonably be expected materially adverse to adversely affect, the holders of the shares of Company Shares; orCommon Stock in their capacities as holders of shares of Company Common Stock.
(viib) extend or otherwise change the The initial expiration date of the Offer in a manner other than as contemplated by this Agreement.
shall be the twentieth (c20th) Unless Business Day after the date that the Offer is commenced (determined pursuant to Rule 14d-1(g)(3) and Rule 14d-2 under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the Offer “Expiration Date”). Merger Sub shall expire at midnight (New York City time) on the twentieth Business Day after not terminate or withdraw the Offer Commencement Dateother than in connection with the effective termination of this Agreement in accordance with Article IX hereof. Notwithstanding the foregoing, without the consent of the Companyunless this Agreement is terminated in accordance with Article IX hereof, Merger Sub shall, and Parent shall have the right to extend the Offer cause Merger Sub to, (i) from time to time extend the Expiration Date if, at the on any then scheduled or extended expiration date of the OfferExpiration Date, any of the Tender Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall is not have been satisfied or waived, until such Offer Conditions are satisfied or waived by Merger Sub, for such periods of up to five (if permitted hereunder5) and Business Days at a time (iior such other longer period as shall be consented to in writing by the Company) for any period as Merger Sub may deem reasonably necessary, but, except as required by any applicable Law, rule, regulation, interpretation or position of the NASDAQ, the SEC or the staff thereof of the SEC (the “SEC Staff”) applicable to the Offer or (including in connection with an increase in the Offer Price), in no event may the Expiration Date be extended pursuant to this clause (i) to a date later than the Termination Date and (ii) extend the Expiration Date for any period otherwise required by any applicable Legal Requirement. If any Law, rule, regulation, interpretation or position of the Offer Conditions is not satisfied NASDAQ, the SEC or waived on any scheduled expiration date of the SEC Staff applicable to the Offer, including in connection with an increase in the Offer Price. Except as expressly provided in this Section 2.1(b), Merger Sub shall not extend the Offer, if, in Offer if all of the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Tender Offer Conditions are satisfied or waived; provided that, waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Company Common Stock that are not validly withdrawn. Nothing in each case, (ithis Section 2.1(b) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, affect any termination rights contained in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange ActArticle IX hereof.
(dc) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate (i) promptly after the Offer in accordance with its terms and Expiration Date, accept for payment and pay for, as promptly as practicable for (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn giving effect to any required withholding Tax pursuant to the Offer and (iiSection 2.1(e)) all shares of Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share Common Stock that have been validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance shall be subject only by written notice to the satisfactionPaying Agent, (ii) promptly after the Acceptance Date, but no later than the close of business, New York City time, on the third Business Day thereafter, deposit or waiver cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Offer Price for such accepted shares of Company Common Stock, and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Company Common Stock so accepted for payment. In the event that the Acceptance Date occurs, but the number of shares of Company Common Stock that have been validly tendered and not properly withdrawn in the Offer, together with any shares of Company Common Stock then owned by Parent, assuming exercise of the Top-Up Option in full, is less than ninety percent (90%) of the outstanding shares of Company Common Stock on a fully diluted basis, Merger Sub may, in its sole discretion, commence a “subsequent offering period” (in accordance with Rule 14d-11 promulgated under the Exchange Act) for a number of days to be determined by Parent but not less than three (3) nor more than twenty (20) Business Days to acquire additional outstanding shares of Company Common Stock. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for (after giving effect to any required withholding Tax) all additional shares of Company Common Stock validly tendered during such subsequent offering period. Parent shall provide or cause to be provided to Merger Sub on a timely basis the consideration necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the Tender Offer Conditions is referred to in this Agreement as the “Offer Closing.”
(d) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) with respect to the Offer, which 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 TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”), and cause the Offer Documents to be disseminated to holders of shares of Company Common Stock as and to the extent permitted hereunder) required by applicable Law. The Offer Documents shall comply in all material respects with the requirements under applicable Law. Each of Parent or and Merger Sub, of each of on the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parentone hand, Merger Sub and the Company Company, on the other hand, agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and shall use, their reasonable best efforts further agree to take all steps necessary to cause the Schedule TO 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 Sharesshares of Company Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 2.1(d). Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any prior to such document is documents (or amendments or supplements thereto) being filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration SEC or disseminated to any comments made by the holders of shares of Company and its counselCommon Stock. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff the SEC Staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications and (ii) shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent or Merger Sub to such comments or communications. Parent and Merger Sub to those comments and to provide comments on that response (to which shall give reasonable and good faith consideration to suggestions of the Company or its counsel in response to such comments or communications. In the event that Parent or Merger Sub receives any comments from the SEC or the SEC Staff with respect to the Offer Documents, each shall be given)use commercially reasonable efforts to respond promptly to such comments and take all other actions necessary to resolve the issues raised therein.
(e) Parent, including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent Paying Agent shall cause be entitled to be provided to Merger Sub all of deduct and withhold from the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase consideration otherwise payable pursuant to the OfferOffer to any holder of shares of Company Common Stock such amounts as Parent, and shall cause Merger Sub or the Paying Agent is required to performdeduct and withhold with respect to the making of such payment under the Code, on a timely basisor any provision of state, local or foreign Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate Taxing Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Merger Sub’s obligations under this AgreementSub or the Paying Agent.
Appears in 1 contract
The Offer. (a) Prior Provided that none of the events --------- set forth in Annex A hereto shall have occurred and be continuing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof. The obligation of Purchaser to make payment for the Trust Units pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that ----------------- Beneficiaries shall have validly tendered, and not withdrawn, 8,651 Trust Units 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 condition, to increase the price per Trust Unit payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be -------- ------- made which decreases the price per Trust Unit payable in the Offer or which reduces the maximum number of Trust Units to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. Notwithstanding the foregoing, Purchaser may, without the consent of the Liquidating Trustee: (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 pay for the Trust Units 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. Purchaser shall pay for up to 21,627 of the Trust Units which Beneficiaries have validly tendered (and not withdrawn) promptly following the acceptance thereof for payment pursuant to the Offer; provided that, if more than 21,627 Trust Units are so tendered, the Purchaser ------------- shall accept and purchase at least 21,627 Trust Units from such Beneficiaries on a pro rata basis, with such adjustments to eliminate fractions as the Purchaser, in its sole discretion, shall determine. 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 Trust Units in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ------------
(b) As promptly as reasonably practicable on the date of this Agreementcommencement of the Offer, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “"Schedule -------- TO") with respect to the Offer. The Schedule TO shall contain or shall -- incorporate by reference an offer to purchase (the "Offer to Purchase") and ----------------- forms of the related transfer agreement (the "Transfer Agreements") and notices ------------------- and any related summary advertisement (the Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectivelysuch other documents, together with any all supplements and amendments or supplements thereto, being referred to herein collectively as the “"Offer Documents”) "). Purchaser and (iii) caused --------------- Liquidating Trustee agree to correct promptly any information provided by any of them for use in the Offer Documents that shall have become false or misleading, and Purchaser further agrees to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Company Shares Beneficiaries, in each case as and to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Liquidation Agreement (Sulzer Medica Usa Holding Co)
The Offer. (a) Prior Provided that (i) this Agreement shall not have been terminated in accordance with Section 8.01, (ii) the Company is prepared (in accordance with Section 1.02(b)) to file the Schedule 14D-9 on the same date as Purchaser commences the Offer and (iii) none of the events set forth in clauses (c)(i) through (vi) of Annex I shall have occurred and be continuing, as promptly as practicable (and in any event within ten (10) Business Days) after the Agreement Date, Purchaser shall commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer to purchase all the outstanding Shares at the Offer Price, subject to: (A) there being validly tendered in the Offer and not properly withdrawn prior to the date Expiration Date that number of Shares which, together with the number of Shares (if any) then beneficially owned by Parent or Purchaser, in the aggregate, or with respect to which Parent or Purchaser otherwise has, directly or indirectly, sole voting power, represents at least one Share more than 50% of the Fully Diluted Shares (excluding from the number of tendered Shares, but not from the outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (collectively, the “Minimum Condition”); and (B) the satisfaction, or written waiver (where permitted by applicable Law) by Parent or Purchaser, of the other conditions and requirements set forth in Annex I.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or written waiver (where permitted by applicable Law) by Parent or Purchaser, of the other conditions and requirements set forth in Annex I, Purchaser shall accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after Purchaser is legally permitted to do so under applicable Law in accordance with the Exchange Act. 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 2.02(e).
(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 applicable Law and this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. Parent and Purchaser expressly reserve the right to waive (where permitted by applicable Law), in their sole discretion, in whole or in part, any of the conditions set forth in Annex I, to increase the 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 Company in writing, Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend any of the other conditions and requirements to the Offer set forth in Annex I in a manner materially adverse to the holders of Shares or (vi) extend the Expiration Date in a manner other than in accordance with this Agreement.
(d) Subject to the terms and conditions of this Agreement, Merger Sub unless extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m. (iNew York City time) commenced on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) promulgated under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 promulgated under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date of on which the Offer has been so extended (the Initial Expiration Date, or such commencementlater date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Offer Commencement Expiration Date”).
(e) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, (i) Purchaser shall extend the Offer for any period or periods required by (A) applicable Law, (B) applicable rules, regulations, interpretations or positions of the SEC or its staff or (C) any of the rules and regulations, including listing standards, of NASDAQ or any other United States national securities exchange registered under the Exchange Act on which the applicable common stock is then traded, (ii) filed in the event that any of the conditions to the Offer set forth in Annex I are not satisfied or, to the extent permitted by applicable Law, waived as of any then scheduled Expiration Date, Purchaser may, in its sole discretion, extend the Offer for successive extension periods of not more than twenty (20) Business Days each in order to permit the satisfaction of the conditions to the Offer set forth in Annex I and (iii) in the event that any of the conditions to the Offer set forth in Annex I are not satisfied or, to the extent permitted by applicable Law, waived as of any then scheduled Expiration Date and there has not been an Adverse Recommendation Change, the Company may, in its sole discretion and by written notice at least two (2) Business Days prior to such scheduled Expiration Date, request that Purchaser extend the Offer for one period of ten (10) Business Days, until all of the conditions to the Offer set forth in Annex I are satisfied or, to the extent permitted, validly waived; provided, however, that notwithstanding the foregoing clause (ii) of this Section 1.01(e), in no event shall Purchaser be required to extend the Offer beyond the earlier to occur of (1) the date this Agreement is terminated pursuant to Section 8.01 or (2) the Outside Date; and provided, further, that the foregoing clause (ii) of this Section 1.01(e) shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Section 8.01.
(f) Notwithstanding the foregoing, if necessary to obtain sufficient Shares to reach the Short Form Threshold, Purchaser shall provide for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of not more than twenty (20) Business Days in the aggregate; provided, however, that if Purchaser exercises the Top Up Option pursuant to Section 1.04, it shall not be required to provide for a “subsequent offering period.” Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall immediately accept for payment and pay for all Shares that are validly tendered pursuant to the Offer during any such “subsequent offering period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the SEC terms of this Section 1.01(f).
(g) Purchaser shall not terminate or withdraw 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, Purchaser shall promptly (and in any event within forty-eight (48) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated pursuant to Article VIII prior to the purchase of Shares in the Offer, Purchaser shall promptly return and shall cause any depositary acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(h) As promptly as practicable on the date of the commencement of the Offer, Parent and Purchaser shall file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and). The Schedule TO shall include, as exhibits, the Offer to Purchase and Purchase, a form of letter of transmittal and transmittal, a form of summary advertisement and other ancillary Offer documents and instruments, if any, in respect of the Offer (collectively, together with any amendments or and supplements theretothereto and the Schedule TO, the “Offer Documents”) ). Parent and (iii) caused Purchaser agree to cause the Offer Documents to be disseminated to holders of Company Shares Shares, as and to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (Exchange Act. Parent and Purchaser, on the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions one hand, and to make any change in the terms of or conditions to the Offer; provided that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoingother hand, without the consent of the Company, Merger Sub shall have the right agree to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it such Party for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. respect or as otherwise required by applicable Law, and Parent and Merger Sub have used, and shall use, their reasonable best efforts Purchaser agree to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company and its legal counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Sub Purchaser shall give reasonable and good faith due consideration to any comments made the additions, deletions or changes suggested thereto by the Company and its legal counsel, in each case, so long as the Company Board has not effected an Adverse Recommendation Change. In addition, so long as the Company Board has not effected an Adverse Recommendation Change, Parent and Merger Sub Purchaser shall provide the Company and its counsel with (i) a copy of any written comments or other communications, whether written or oral, telephonic notice of any oral comments that Parent, Merger Sub or their counsel may receive from time to time be received from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications thereof and prior to responding thereto and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith due consideration shall be given)) and to participate in such response, including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(gi) Parent shall provide or cause to be provided to Merger Sub all of Purchaser on a timely basis the funds necessary to purchase pay for any Company Shares that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer, .
(j) Parent and Purchaser shall timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Transactions required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall cause Merger Sub disseminate to performthe holders of Shares 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.
(k) The Offer Price shall be adjusted appropriately to reflect any reclassification, on recapitalization, stock split (including a timely basisreverse stock split), all or combination, exchange or readjustment of Merger Sub’s obligations under shares, or any stock dividend or stock distribution occurring (or for which a record date is established) after the Agreement Date and prior to the payment by Purchaser for Shares validly tendered and not properly withdrawn in connection with the Offer; provided, however, that this sentence shall not be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Arctic Cat Inc)
The Offer. (a) Prior to the date of this Agreement, Merger Sub Provided that (i) commenced this Agreement shall not have been terminated in accordance with Section 9.1 and (ii) none of the events set forth in Annex A hereto that would entitle Parent and Merger Subsidiary to fail to consummate the Offer shall have occurred and be continuing (and shall not have been waived by Parent), as promptly as practicable, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the date of such commencement“Exchange Act”)), the Offer for any and all of the Shares, at the Offer Price. The obligation of Merger Subsidiary to accept for payment and to pay for any Shares tendered (and the obligation of Parent to cause Merger Subsidiary to accept for payment and to pay for any Shares tendered) shall be subject only to (i) the condition that at least 80% of the outstanding Shares be validly tendered and not withdrawn (the “Offer Commencement DateMinimum Condition”), and (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the other conditions set forth in Annex I hereto (the “Offer Conditions”). A. Merger Sub Subsidiary expressly reserves the right to waive any of increase the Offer Conditions and Price or to make any change other changes in the terms and conditions of or conditions to the Offer; provided thatprovided, without however, that unless previously approved by the prior written consent of the CompanyCompany in writing, Merger Sub shall not:
no change may be made that (i) waive decreases the Offer Price or change the Minimum Condition (as defined in Annex I);
Cash Portion or the Stock Portion thereof, (ii) decrease the Offer Price;
(iii) change changes the form or combination of consideration to be paid in the Offer;
, (iii) reduces the number of Shares to be purchased in the Offer, (iv) decrease amends the number conditions set forth in Annex A to broaden the scope of such conditions, add any additional conditions, or otherwise adversely affect the holders of Shares, (v) extends the Offer except as provided in Section 1.1(b), or (vi) 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 Merger Subsidiary and may be waived by Parent and Merger Subsidiary, 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 Company approval is required. The failure by Parent and Merger Subsidiary at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares sought held by the Company or its Subsidiary will be tendered in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(cb) Unless extended pursuant Subject to and in accordance with the terms of this Agreementand conditions thereof, the Offer shall expire at midnight (midnight, New York City time) , on the twentieth Business Day date that is twenty (20) business days after the date the Offer Commencement Date. Notwithstanding the foregoingis commenced; provided, however, that without the consent of the CompanyCompany Board (the “Company Board”), Merger Sub shall have the right to extend the Offer Subsidiary may (i) from time to time ifextend the Offer, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions time as such conditions are satisfied or waived (if permitted hereunder) and waived, but not beyond the termination of this Agreement pursuant to Article IX; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer Offer; or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (iiii) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide include a subsequent offering period (“Subsequent Offering Period”) as such term is defined in accordance with Rule 14d-11 of 14d-1 under the Exchange Act.
) to the Offer for a period up to twenty (d20) business days. Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditionsand this Agreement, Merger Sub shall, Subsidiary shall (and Parent shall cause it Merger Subsidiary to, consummate the Offer in accordance with its terms and ) accept for payment payment, and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted that Merger Subsidiary becomes obligated to accept for payment under and pay for pursuant to the Offer, as promptly as practicable after the “Acceptance Time” and expiration of the date on which Company Shares are first accepted for Offer. No fraction of a share of Parent Common Stock will be issued in connection with the payment under of the Stock Portion upon consummation of the Offer, but in lieu thereof each tendering shareholder who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) in the Offer shall receive from Parent an amount of cash (rounded to the nearest whole cent), without interest, equal to the product obtained by multiplying such fraction by the closing price of one (1) share of Parent Common Stock on the first date Merger Subsidiary accepts Shares for exchange in the Offer, as reported on the Nasdaq National Market (“Nasdaq”). With respect to any such Shares the Cash Portion shall be net to the seller thereof in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller.
(c) As soon as practicable after the date of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S-4 to register the offer and sale of Parent Common Stock pursuant to the Offer (the “Acceptance DateRegistration Statement”). The obligation of Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) promulgated under the Exchange Act (the “Preliminary Prospectus”). As soon as practicable on the date the Offer is commenced, Parent and Merger Sub Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and of Parent to cause Merger Sub) to accept for paymentsupplements thereto, and pay including all exhibits thereto, the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant “Schedule TO”) with respect to the Offer and shall cause the Offer Documents to be subject only disseminated to holders of Shares. The Schedule TO shall contain as an exhibit or incorporate by reference the Preliminary Prospectus (or portions thereof) and forms of the related letter of transmittal and summary advertisement, if any. Parent and Merger Subsidiary agree that they shall cause the Schedule TO, the Preliminary Prospectus and all amendments or supplements thereto (which together constitute the “Offer Documents”) to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws (as defined in Section 4.1(c)). Parent and Merger Subsidiary further agree that the Offer Documents, on the date first published, sent or given to the satisfactionCompany’s shareholders, shall not contain any untrue statement of a material fact or waiver (omit to state any material fact required to be stated therein or necessary in order to make the extent permitted hereunder) statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger SubSubsidiary with respect to information supplied by the Company or any of its shareholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, of each in light of the Offer Conditions.
(e) Merger Sub shall circumstances under which they were made, 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 in accordance with its terms.
(f) misleading. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and Registration Statement or the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and shall use, their reasonable best efforts Subsidiary further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe Company’s shareholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO TO, the Registration Statement and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall Subsidiary agree to provide in writing to the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such comments or other communications and (ii) shall provide Company and its counsel with a reasonable opportunity to participate in the response of Parent and or Merger Sub Subsidiary to those comments such comments. Parent shall use all reasonable efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after its filing and to provide comments on that response (to which reasonable and good faith consideration maintain such effectiveness for so long as shall be given), including by participating with required for the issuance of Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase Common Stock pursuant to the Offer. Following the time the S-4 is declared effective, and Parent shall cause Merger Sub file the final prospectus included therein under Rule 424(b) promulgated pursuant to perform, on a timely basis, all of Merger Sub’s obligations under this Agreementthe Securities Act.
Appears in 1 contract
Sources: Merger Agreement (Quovadx Inc)
The Offer. (a) Prior to As promptly as practicable after the date execution of this Agreement, Merger Sub Company 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 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 A 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 entitled to receive a fraction of a share of Company Common Stock, 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) commenced the Offer (fraction of a share of Company Common Stock to which the date of such commencement, the “Offer Commencement Date”), holder would otherwise be entitled by (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws$16.60.
(b) The obligations of Company to commence the Offer is and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the conditions set forth herein and in Annex I hereto 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 “Offer Conditions”). Merger Sub "OFFER TO PURCHASE") containing the terms set forth in this Agreement and the conditions set forth in ANNEX A hereto.
(c) Company expressly reserves the right to waive any of the Offer Conditions and to make any change in modify the terms of or conditions to the Offer; provided provided, that, without the Zengine's prior written consent of the Companyconsent, Merger Sub Company shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) not decrease the Offer Price;
(iii) Price or decrease the number of Shares sought, change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement amend any of the Offer Conditions or terms condition of the Offer in a any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; or
Shares (vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant with respect to insignificant changes or amendments and in accordance with subject to the terms penultimate sentence of this AgreementSection 1.1(c)) ; PROVIDED, the Offer shall expire at midnight (New York City time) HOWEVER, that, if on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the initial scheduled or extended expiration date of the Offer, any of which shall be 20 business days after the date that the Offer Conditions (other than is commenced, all conditions which by their nature are to be satisfied at the Acceptance Time) Offer shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfiedCompany may, from time to time until such Offer Condition or Offer Conditions time as all such conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of extend the Exchange Act.
(d) Subject to expiration date; PROVIDED FURTHER, HOWEVER, that without Zengine's prior written consent, the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) expiration date of the Offer Conditionsmay not be extended beyond 60 calendar days after commencement of the Offer. In addition, Merger Sub shall, and Parent shall cause it to, consummate the Offer Price may be increased and the Offer may be extended to the extent required by applicable Law (as hereinafter defined) in accordance connection with its terms and accept for payment and pay forsuch increase, as promptly as practicable (i) after in each case without the consent of Zengine. If, immediately prior to the initial expiration date of the Offer (regardless of Subsequent Offering Periods)Offer, all Company the Shares validly tendered and not 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 of such expiration date of the Offer. In addition, Company may make available a "subsequent offering period," in accordance with Rule 14d-11 of the United States Securities and (ii) all Company Shares validly tendered in the Subsequent Offering Period Exchange Commission (the time at which "SEC"), 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 and this Agreement, Company Shares are first accepted shall, accept for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share for all Shares validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to as soon as practicable after the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each expiration of the Offer ConditionsOffer.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior Upon the terms and subject to the date conditions of this Agreement, unless otherwise agreed in writing by Parent and the Company, no earlier than August 14, 2019 and no later than August 19, 2019, Merger Sub (i) commenced shall, and Parent shall cause Merger Sub to, commence, within the Offer (meaning of Rule 14d-2 under the date of such commencementExchange Act, the “Offer Commencement Date”)Offer. The obligations of Merger Sub to, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect and of Parent to cause Merger Sub to, irrevocably accept for payment, and pay for, any Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(bpermitted under this Agreement) The Offer is subject only to of the conditions set forth in Annex I hereto (as they may be amended in accordance with this Agreement, the “Offer Conditions”). .
(b) To the extent permitted by Law, Parent and Merger Sub expressly reserves reserve the right right, at any time, to waive waive, in whole or in part, any of Offer Condition (other than the Minimum Condition), to increase the Offer Conditions and Price or to make any change in modify the terms of or conditions to the Offer; provided provided, however, that, without the prior written consent of the CompanyCompany (in its sole and absolute discretion), neither Parent nor Merger Sub shall not:
(i) waive or change reduce the Minimum Condition maximum number of Shares sought to be purchased in the Offer (as defined in Annex Iother than pursuant to Section 1.1(h);
), (ii) decrease reduce the Offer Price;
Price (iiiother than pursuant to Section 1.1(h)) or change the form of consideration to be paid payable in the Offer;
, (iii) change, modify or waive the Minimum Condition, (iv) decrease impose conditions to the number Offer that are in addition to the Offer Conditions, or modify or amend any existing Offer Conditions, in a manner that is adverse to the holders of Company Shares sought in the Offer;
Shares, (v) impose additional Offer Conditions except as otherwise required or other requirements to expressly permitted by Section 1.1(d), extend or otherwise change the Offer;
Expiration Time, (vi) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (vii) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the . The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in a manner other than as contemplated by this Agreementaccordance with Article VII.
(c) Unless The Offer shall initially expire at 5:00 p.m., New York City time, on the date that is twenty one (21) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with the terms of this AgreementSection 1.1(d), the Offer shall expire at midnight (New York City time) on the twentieth Business Day after date and time to which the Offer Commencement Date. Notwithstanding has been so extended (the foregoingInitial Expiration Time, without or such later expiration date and time to which the consent of Offer has been so extended, the Company“Expiration Time”).
(d) Subject to Article VII, Merger Sub shall, and Parent shall have cause Merger Sub to, (or in the right to case of clause (iv) below, Merger Sub may) extend the Offer from time to time:
(i) from time to time if, at for the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any minimum period as required by any rule, regulation, interpretation or position of the SEC or SEC, the staff thereof or The New York Stock Exchange (the “NYSE”) applicable to the Offer Offer;
(ii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any Proceeding in accordance with Section 8.5 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Merger Sub, in which case the Expiration Time shall be extended (A) for the period otherwise required during which such Proceeding is pending or (B) by applicable Legal Requirement. If such other time period established by the Governmental Entity presiding over such Proceeding, as the case may be, but, in each case of clauses (A) and (B), not past the End Date;
(iii) if, at the then-scheduled Expiration Time, any of the Offer Conditions is has not either been (A) satisfied or (B) waived on any scheduled expiration date of the Offer, by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), in which case Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer, ifin consecutive periods of five (5) Business Days each (with each such period to end at 5:00 p.m., in New York City time, on the determination last Business Day of Parent, such period) (or such other duration as may be agreed to by Parent and the Company) on such number of occasions as shall be necessary to permit the satisfaction of such Offer Condition or Offer Conditions could reasonably be expected to be satisfiedConditions; provided, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided thathowever, in each case, (i) that Merger Sub shall not be required to extend the Offer beyond to a date later than the earlier End Date; or
(iv) if, at the then-scheduled Expiration Time, (A) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Acceptance Time and the Closing and (xB) Parent and Merger Sub acknowledge and agree in writing that (1) the Company would be entitled to terminate this Agreement pursuant to Section 7.1(f) and receive the Parent Termination Fee, and (2) all Offer Conditions set forth in paragraphs (d), (e), (f) and (j) of Annex I will be deemed to be satisfied or waived at the Expiration Time of the Offer after giving effect to any extension pursuant to this clause (iv) (if such Offer Conditions were actually satisfied at the time of such extension), Merger Sub shall have the right in its sole discretion to extend the Offer on up to four (4) occasions in consecutive increments of five (5) Business Days each (with each such period to end at 5:00 p.m., New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); provided, that Merger Sub shall not be permitted to extend the Offer to a date later than the End Date and provided, further, that for the avoidance of doubt, no extension pursuant to this Section 1.1(d)(iv) shall preclude the Company from exercising its right to terminate this Agreement pursuant to Section 7.1(f). Merger Sub shall not, and Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or permitted pursuant to this Section 1.1(d).
(ye) On the date that is 30 days after terms and subject to the date that conditions of this Agreement, including satisfaction or waiver of all of the Offer Conditions Conditions, (other than i) prior to 9:00 a.m., New York City time, on the Minimum Condition and those that by their nature are to be satisfied at the expiration of the OfferBusiness Day (determined using Rule 14d-1(g)(3) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of under the Exchange Act.
(d) Subject to immediately following the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer ConditionsExpiration Time, Merger Sub shall, and Parent shall cause it Merger Sub to, consummate the Offer in accordance with its terms and irrevocably accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted of acceptance for payment under the Offerpayment, the “Offer Acceptance Time” and the date on which Company ”) all Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate at or as promptly as practicable following the Offer Acceptance Time (but in any event within two (2) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the response of Parent and Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all Shares validly tendered and not properly withdrawn pursuant to those comments and the Offer at the Offer Acceptance Time; provided, that with respect to provide comments on Shares tendered pursuant to guaranteed delivery procedures that response (to which reasonable and good faith consideration have not yet been delivered in settlement or satisfaction of such guarantee, Merger Sub shall be given), including by participating with Parent under no obligation to make any payment for such Shares unless and Merger Sub until such shares are delivered in settlement or their counsel in any discussions or meetings with the SEC.
(g) satisfaction of such guarantee. Parent shall provide or cause to be provided to Merger Sub all Sub, at or prior to the Offer Acceptance Time, the funds that, when taken together with available cash of the funds Company and its Subsidiaries, are necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, fulfill all of Merger Sub’s obligations under this Agreement.
(f) The Offer Price payable in respect of each Share shall be paid on the terms and subject to the conditions of this Agreement. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) Unless this Agreement is validly terminated in accordance with Article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company (in its sole and absolute discretion). In the event this Agreement is validly terminated in accordance with Article VII, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares to the tendering stockholders in accordance with applicable Law.
(h) Subject to the obligations of the Company and its Subsidiaries pursuant to Section 5.1, the Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to Shares occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action.
Appears in 1 contract
The Offer. (a) Prior Subject to the date provisions of this Agreement, Merger as promptly as practicable but in no event later than February 25, 2002, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (i) commenced together with the rules and regulations thereunder, the "Exchange Act"), the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer (the date of such commencementand accept for payment, the “Offer Commencement Date”)and pay for, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect any Shares tendered and not withdrawn pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto the attached Exhibit A (the “"Offer Conditions”). Merger Sub expressly reserves the right to waive ") (any of the Offer Conditions and to make any change which may be waived in the terms of whole or conditions to the Offer; provided thatin part by Sub in its sole discretion, without the prior written consent of the Company, Merger except that Sub shall not:
(i) not waive or change the Minimum Condition (as defined in Annex I);
(iiExhibit A) decrease without the Offer Price;
(iiiconsent of the Company) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements and subject to the Offer;
(vi) otherwise amend, rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. Sub expressly reserves the right to modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affectsOffer, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoingexcept that, without the consent of the Company, Merger Sub shall have the right to extend the Offer not (i) from time reduce the number of Shares subject to time ifthe Offer, (ii) reduce the Offer Price, (iii) add to or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer, or (vi) otherwise amend the terms and conditions of the Offer in a manner adverse to the stockholders of the Company. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer, Offer any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been be satisfied or waived, until such Offer Conditions time as such conditions are satisfied or waived (if permitted hereunder) and waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iii) if all Offer Conditions are satisfied or any waived but the number of Shares tendered pursuant to the Offer is less than 90% of the outstanding Shares, 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 required by applicable Legal Requirementbe permitted under clause (i) or (ii) of this sentence, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. If any of the Offer Conditions is not are satisfied or waived on (to the extent permitted herein) and Sub purchases Shares pursuant to the Offer, Sub may, in Sub's sole discretion, provide a "subsequent offering period" in accordance with Rule 14d-11 under the Exchange Act. Parent and Sub agree that if at any scheduled expiration date of the Offer, Merger the Minimum Condition, the HSR Condition (as defined in Exhibit A) or either of the conditions set forth in paragraphs (e) or (f) of Exhibit A shall not have been satisfied, but at such scheduled expiration date all of the conditions set forth in paragraphs (a), (b), (c), (d) and (g) of Exhibit A shall then be satisfied, at the request of the Company (confirmed in writing), Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; (provided that, in each case, (i) Merger that Sub shall not be required to extend the Offer beyond for more than 20 business days), subject to the earlier right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof; provided, however, that Parent and Sub shall not be required to extend the Offer if any person or "group" (xas defined in Section 13(d)(3) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (Exchange Act), other than Parent, Sub or their affiliates or any group of which any of them is a member, shall have acquired or announced (and not withdrawn) its intention to acquire beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Minimum Condition and those that by their nature are to be satisfied at the expiration Exchange Act) of 15% or more of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension Shares. The initial expiration date of the Offer shall be for a period 20 business days from and including the date of more than five Business Days. Following expiration commencement of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) . Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditionsand this Agreement, Merger Sub shall, and Parent shall cause it Sub to, consummate the Offer in accordance with its terms and accept for payment payment, and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger that Sub (and of Parent to cause Merger Sub) becomes obligated to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall be subject only file with the SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the satisfactionOffer, which shall contain as an exhibit or waiver incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause the Offer Documents to be disseminated to holders of Shares as and to the extent permitted hereunder) required by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of applicable federal securities laws. Parent, Merger Sub and the Company agrees shall each promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and shall use, their reasonable best efforts further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration SEC or dissemination to any comments made by the Company and its counselstockholders of the Company. Parent and Merger Sub shall agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those such comments and to provide comments on that response (to which reasonable cooperate with the Company and good faith consideration shall be given), including by participating with Parent and Merger Sub or their its counsel in responding to any discussions or meetings with the SECsuch comments.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Oratec Interventions Inc)
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, as promptly as practicable after the date of this Agreementhereof (but in no event later than the seventh (7th) Business Day after the date hereof), Merger Sub shall commence (i) commenced within the Offer (meaning of Rule 14d−2 under the date of such commencement, the “Offer Commencement Date”Exchange Act), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect and Parent shall cause Merger Sub to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibitscommence, the Offer to Purchase purchase all of the issued and outstanding Shares at a form of letter of transmittal and summary advertisement price per Share in cash equal to $17.75 (collectivelysuch amount to be paid for each Share, together as it may be amended from time to time in accordance with any amendments or supplements theretothe terms hereof, the “"Offer Documents”Price") net to the seller, without interest and (iii) caused the Offer Documents less any taxes required to be disseminated to holders withheld as described in Section 3.04. The Company agrees that no Shares owned by the Company or any of Company Shares its Subsidiaries will be tendered pursuant to the extent required by applicable federal securities lawsOffer.
(b) The obligations of Merger Sub, and of Parent to cause Merger Sub, to accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer is on or prior to the Expiration Date (the "Tendered Shares") shall be subject only to (i) the satisfaction of the minimum condition set forth in clause (i) of Annex III hereto (such condition, the “Minimum Condition”) and (ii) the satisfaction or waiver by Parent or Merger Sub of the other conditions set forth in Annex I III hereto (such conditions, together with the “Minimum Condition, the "Offer Conditions”)") and the terms and conditions hereof. The Offer Conditions are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company, in each case on the terms and subject to the conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserves reserve the right to increase the Offer Price or to waive any or to modify the terms or conditions of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided , except that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not:
make any change to the terms or conditions of the Offer that (i) waive or change reduces the Minimum Condition (as defined in Annex I);
Offer Price, (ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid payable in the Offer;
, (iii) reduces the number of Shares sought to be purchased by Merger Sub in the Offer, (iv) decrease waive or amend the number of Company Shares sought in the Offer;
Minimum Condition, (v) impose additional add to the Offer Conditions or impose any other requirements conditions to the Offer;
, (vi) extend the expiration of the Offer except as required or permitted in Section 1.01 of this Agreement, or (vii) otherwise amend, modify or supplement any Offer Condition or any term of the Offer Conditions or terms of the Offer set forth in this Agreement, in each case in a manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; or
(vii) extend . Parent and Merger Sub shall not abandon or otherwise change terminate the Offer prior to any expiration date without the prior written consent of the Offer Company except in a manner other than as contemplated by the event that this AgreementAgreement is validly terminated pursuant to Article VIII.
(c) Unless Subject to the terms and conditions of this Agreement and the Offer, the initial expiration date for the Offer shall be midnight, New York City time, on the date that is twenty (20) Business Days from and after the date the Offer is commenced, as determined in accordance with Rule 14d-1(g)(3) of the Exchange Act (such initial expiration date as it may be extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement "Expiration Date"). Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall, and Parent shall have the right to cause it to, extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or the Nasdaq that is applicable to the Offer or any period otherwise required by applicable Legal RequirementOffer. If any Merger Sub may without the consent of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, Company (in each casecase unless this Agreement has been terminated pursuant to Article VIII), (i) Merger Sub shall not be required to extend the Offer beyond for one or more consecutive increments of not more than ten (10) Business Days each, if at the earlier then-scheduled Expiration Date any Offer Condition has not been satisfied or waived (the length of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are such period to be satisfied at the expiration of the Offerdetermined by Parent and Merger Sub) have been satisfied or, to the extent permissible, have been waived by Merger Sub and and/or (ii) no such individual extension of the Offer shall be for make available a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a "subsequent offering period (“Subsequent Offering Period”) period" in accordance with Rule 14d-11 of under the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction . If at any then-scheduled Expiration Date any Offer Condition has not been satisfied or waiver (if permitted hereunder) of the Offer Conditionswaived, Merger Sub shall, and Parent shall cause it to (in each case unless this Agreement has been terminated pursuant to Article VIII), extend the Offer on one or more occasions at the request of the Company for successive periods of not more than twenty (20) Business Days (the length of such period to be determined by Parent and Merger Sub) until the earlier to occur of (A) the termination of this Agreement pursuant to Article VIII and (B) September 30, 2013. Nothing in this Section 1.01(c) shall (i) impose any obligation on Merger Sub to extend the Offer beyond September 30, 2013, or (ii) 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 VIII.
(d) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Merger Sub shall, and Parent shall cause Merger Sub to, consummate on the terms set forth in this Agreement and subject only to the prior satisfaction or waiver of the Offer in accordance with its terms and Conditions (provided, however, that the Minimum Condition may not be waived without the written consent of the Company), accept for payment and pay for, for all Tendered Shares as promptly soon as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Expiration Date”). The obligation of If Merger Sub (makes available a "subsequent offering period" in accordance with Section 1.01(c) hereof, Merger Sub shall, and of Parent to shall cause Merger Sub) Sub to accept for payment, payment and pay the Offer Price for, each Company Share for all Shares that are validly tendered and not properly withdrawn pursuant to during such "subsequent offering period" promptly (within the Offer shall be subject only to meaning of Rule 14d-11 under the satisfaction, or waiver (to the extent permitted hereunderExchange Act) by Parent or Merger Sub, of each of the Offer Conditionsafter any Shares are validly tendered during such "subsequent offering period."
(e) On the date of commencement of the Offer, Parent and Merger Sub shall not terminate file with the SEC in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain the Offer prior to Purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any scheduled expiration date without supplements or amendments thereto and including the prior written consent exhibits thereto, the "Offer Documents"), and cause the Offer Documents to be disseminated to the shareholders of the Company except as and to the extent required by United States federal securities Laws and the rules and regulations of the SEC promulgated thereunder (the "Federal Securities Laws"). Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the event that this Agreement is terminated Federal Securities Laws. Parent and Merger Sub shall deliver copies of the proposed forms of the Offer Documents (including any amendments or supplements thereto) to the Company within a reasonable time prior to the dissemination or filing thereof for review and comment by the Company and its counsel, and shall consider in accordance with its terms.
(f) good faith any comments of the Company. Each of Parent, Merger Sub and the Company agrees shall respond promptly to any comments of the SEC or its staff with respect to the Offer or the Offer Documents and promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by the Federal Securities Laws. Parent and Merger Sub have used, shall amend or supplement the Offer Documents and shall use, their reasonable best efforts to cause the Schedule TO Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company the Federal Securities Laws and its counsel shall be given a reasonable opportunity to review and comment on any change subject to the Schedule TO terms and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counselconditions of this Agreement. Parent and Merger Sub shall provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications and (ii) shall give the Company a reasonable opportunity under the circumstances to participate review and comment on any proposed written or oral responses to such comments. The Company hereby consents to the inclusion in the response Offer Documents of Parent the Company Board Recommendation as it may be amended or modified, and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given)until but not after it is withdrawn, including in each case as permitted by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SECthis Agreement.
(gf) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s 's obligations under this AgreementAgreement with respect to consummation of the Offer and the Merger and payment or issuance of consideration contemplated by this Agreement in respect thereof.
Appears in 1 contract
The Offer. (a) Prior to As promptly as practicable but in no event later than five business days (as defined in Rule 14d-1(g)(3) promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) after the date of this Agreement, Merger Sub (i) commenced shall, and Parent shall cause Merger Sub to, commence the Offer (within the date meaning of such commencementthe applicable rules and regulations of the SEC. The obligations of Merger Sub to, the “Offer Commencement Date”)and of Parent to cause Merger Sub to, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is are subject only to the conditions set forth in Annex I hereto Exhibit A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (the “determined using Exchange Act Rule 14d-1(g)(3)). The Offer Conditions”may not be terminated prior to its scheduled expiration (as such expiration may be extended or re-extended in accordance with this Agreement), unless this Agreement is terminated in accordance with Section 8.1. Merger Sub expressly reserves the right to waive any of condition to the Offer Conditions and to make any change in or modify the terms of or conditions to the Offer; provided , except that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have not (i) reduce the right number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) waive the Minimum Tender Condition (as defined in Exhibit A), (iv) add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in a manner adverse to the holders of Company Common Stock, (v) extend the Offer (iexcept as expressly provided below), (vi) from time change the form of consideration payable in the Offer or (vii) otherwise amend the Offer in any manner adverse to time ifthe holders of Company Common Stock. Notwithstanding the foregoing, at Merger Sub may, without the scheduled or extended expiration date consent of the OfferCompany, any of extend the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer. In addition, (i) if at the initially scheduled or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled extended expiration date of the Offer, any of the conditions to the Offer set forth in Exhibit A (other than any conditions which by their nature are to be satisfied at the closing of the Offer) are not satisfied or, if permitted, waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer, if, Offer in the determination increments of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time not more than ten business days each until such Offer Condition or Offer Conditions time as such conditions are satisfied or waived; provided that, in each case, (i) that Merger Sub shall not be required to extend the Offer beyond the earlier of Outside Date (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub as defined in Section 8.1(b)(i)); and (ii) no such individual extension if fewer than 90% of the Offer shall be issued and outstanding shares of Company Common Stock are accepted for a period of more than five Business Days. Following expiration of payment pursuant to the Offer, then Merger Sub may, in its sole discretionand at the request of the Company, provide shall, and upon any such request of the Company, Parent shall cause Merger Sub to, make available a “subsequent offering period (“Subsequent Offering Periodperiod”) , in accordance with Rule 14d-11 of promulgated by the SEC under the Exchange Act.
, of not less than ten business days (d) Subject to but in no event with an expiration date after November 13, 2009). On the terms and conditions set forth in this Agreement and subject to the satisfaction or waiver (if permitted hereunder) conditions of the Offer Conditionsand this Agreement, Merger Sub shall, and Parent shall cause it Merger Sub to, consummate the Offer in accordance with its terms and accept pay for payment and pay for, as promptly as practicable (i) after the expiration all shares of the Offer (regardless of Subsequent Offering Periods), all Company Shares Common Stock validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. For the avoidance of doubt, the parties hereto agree that vested shares of Restricted Stock may be tendered in the Subsequent Offering Period Offer and be acquired by Parent or Merger Sub pursuant to the Offer.
(b) On the time at which Company Shares are first accepted for payment under date of commencement of the Offer, Parent and Merger Sub shall file with the “Acceptance Time” and the date SEC a Tender Offer Statement on which Company Shares are first accepted for payment under Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Acceptance DateOffer Documents”). The obligation of Merger Sub (and of Company shall promptly provide Parent with all information relating to cause Merger Sub) the Company that is required to accept for paymentbe included in the Offer Documents, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant hereby consents to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each inclusion of the Offer Conditions.
(e) Merger Sub shall not terminate recommendations of the Offer prior to any scheduled expiration date without the prior written consent Board of Directors of the Company except (the “Company Board”) and the Special Committee of Independent Directors of the Company Board (the “Special Committee”) described in clauses (iii) and (iv) of the second sentence of Section 3.3(b) and clause (iii) of the first sentence of Section 3.3(b) in the event Offer Documents. Parent and Merger Sub agree that this Agreement is terminated the Offer Documents shall comply in accordance all material respects with its terms.
(f) the requirements of applicable Federal securities laws and, on the date first filed with the SEC and on the date first published, sent or given to the Company’s stockholders shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and each of Parent and Merger Sub have used, shall take all steps necessary to amend or supplement the Offer Documents and shall use, their reasonable best efforts to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected amended or supplemented to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal Federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and upon the Offer Documents each time before and any amendments thereto prior to filing such document is filed documents with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration SEC or dissemination of such documents to any comments made by the Company and its counselstockholders of the Company. Parent and Merger Sub shall provide the Company and its counsel in writing with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration such comments, shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings consult with the SECCompany and its counsel prior to responding to such comments, and shall provide to the Company and its counsel a copy of any written responses thereto and telephonic notice of any oral responses or discussions with the SEC staff.
(gc) Parent shall provide or cause to be provided to Merger Sub all of on a timely basis the funds necessary to purchase any shares of Company Shares Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior Subject to the provisions of this Agreement, as promptly as practicable, and in any event no more than seven Business Days, after the date of this Agreement, Merger Sub (i) commenced Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence, within the Offer (meaning of Rule l4d-2 under the date of such commencementExchange Act, the “Offer Commencement Date”)Offer. The obligation of Merger Subsidiary to, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect and of Parent to the Offer (together with all amendments cause Merger Subsidiary to, accept for payment and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with pay for any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to Shares tendered shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the satisfaction of the conditions set forth in Annex I hereto (A and to the “Offer Conditions”). terms and conditions of this Agreement; provided that Parent and Merger Sub expressly reserves the right to Subsidiary may waive any of the conditions to the Offer Conditions (other than the Minimum Condition, which may not be waived without the prior written consent of the Company) and to may make any change changes in the terms and conditions of or conditions to the Offer; provided Offer except that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or no change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change may be made to the form of consideration to be paid paid, no decrease in the Offer;
(iv) decrease Offer Price or the number of Company Shares sought in the Offer;
(v) impose Offer may be made, no change which imposes additional Offer Conditions or other requirements conditions to the Offer;
(vi) otherwise amend, modify Offer or supplement modifies any of the Offer Conditions or terms of the Offer conditions set forth in a Annex A in any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; orShares may be made and neither Parent nor Merger Subsidiary may extend the Offer, except in accordance with Section 2.01(c).
(viib) extend On the date of commencement of the Offer, Parent and Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO (as amended and supplemented from time to time, the "Schedule TO"), which shall comply in all material respects with the provisions of applicable federal securities Laws, and shall contain the offer to purchase relating to the Offer and forms of the related letter of transmittal and other appropriate documents (which documents, as amended or otherwise change supplemented from time to time, are referred to herein collectively as the "Offer Documents"). The Parent and the Merger Subsidiary further agree to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities Laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company's stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC. Parent and Merger Subsidiary agree to provide the Company, and to consult with the Company and its counsel regarding, any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptly after receipt thereof and any responses thereto. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent and Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each case, as and to the extent required by Law.
(c) The initial scheduled expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth be 20 Business Day Days after the Offer Commencement Datedate of its commencement. Notwithstanding the foregoing, without the consent of the Company, Parent and Merger Sub Subsidiary shall have the right to extend the Offer (i) from time to time if, at the any scheduled or extended expiration date of the Offer, any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) set forth in Annex A shall not have been satisfied or waived, until such ; provided that if any of the conditions to the Offer Conditions are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A hereto is not satisfied or waived as a result of the occurrence of any of the events described in subparagraph (b) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the written request of the Company if permitted hereunder) and such conditions or condition could reasonably be expected to be satisfied on or before July 31, 2004, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any Law, (iii) on one or more occasions (all such occasions aggregating not more than 20 Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, represents more than 50% but less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent's decision to extend the Offer Conditions is in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (c) and (e) (excluding any wilful or intentional breach of any material obligation of the Company) on Annex A and of its right to terminate the Agreement under Sections 8.01(b), (d) (unless there has been a wilful or intentional breach of any material obligation by the Company), (i) or (j), (iv) on up to two occasions (for a period not satisfied to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or waived on any scheduled extended expiration date of the Offer, Merger Sub shall extend the Offer, if, and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in the determination of Parentaggregate (collectively, such Offer Condition or Offer Conditions could reasonably be expected the "Subsequent Period") pursuant to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditionsand this Agreement, Merger Sub Subsidiary shall, and Parent shall cause it Merger Subsidiary to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the expiration thereof; provided that Merger Subsidiary shall immediately accept and (ii) promptly pay for all Company Shares validly as they are tendered in the during any Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectPeriod. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of Subsidiary on a timely basis the funds necessary to purchase any Company Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer.
(e) The Offer Price may be increased by the Parent without the consent of the Company, and in which case the Offer shall cause Merger Sub to performbe extended, on a timely basiswithout the consent of the Company, all of Merger Sub’s obligations under this Agreementas required by applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Wiser Oil Co)
The Offer. 12.1 Immediately after Closing, the Buyer shall make the Offer. Having made the Offer, the Buyer undertakes to comply with its obligations arising under or by virtue of the Offer as set out in the Offer Letter and will procure that if any 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ are also to irrevocably undertake) to the Buyer
(a) Prior to accept or procure the acceptance of the Offer (once made) not later than close of business on the date of this Agreement, Merger Sub (i) commenced agreement and to complete or procure the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect completion and delivery to the Offer (together with all amendments Buyer of stock forms of transfer and supplements thereto and including exhibits thereto, share certificate(s) and/or other document(s) of the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and title or evidence of authority in respect thereof or a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares indemnity to the extent required by applicable federal securities laws.directors of the Company in respect of any lost certificates, in each case in respect of their beneficial holdings of B Shares; and
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right exercise their respective options to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company subscribe for B Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become 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;
(or shall have become known c) to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and accept the Offer Documents in relation to such B Shares as so corrected are referred to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenClause 12.2(b), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.;
(gd) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase except pursuant to the Offer, and shall cause Merger Sub not to performsell, on a timely basistransfer, 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 Merger Sub’s 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 way 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 Agreementundertaking 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) Prior to The Merger Agreement provides for the commencement of the Offer as promptly as reasonably practicable, but in any event within five Business Days after the date of this the Merger Agreement. The obligation of Purchaser to accept for payment, Merger Sub (i) commenced the Offer (the date of such commencementand pay for, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect Shares tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares is subject to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any satisfaction of the Offer Minimum Condition and certain 22 Table of Contents other conditions that are described in Section 15 — “Certain Conditions and to make any change in the terms of or conditions to the Offer; provided .” The Purchaser has agreed that, without the prior written consent of the Company, Merger Sub shall not:
no change in the Offer may be made which (i) waive or change decreases the Minimum Condition (as defined in Annex I);
offer price, (ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid payable in the Offer;
, (iii) reduces the maximum number of Shares sought to be purchased in the Offer or the Minimum Condition, (iv) decrease modifies or adds conditions to the number Offer set forth in Section 15 — “Certain Conditions of Company Shares sought in the Offer;
” (other than to waive any such condition to the extent permitted by the Merger Agreement) or (v) impose additional Offer Conditions or amends any other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms term of the Offer in a manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date . The Merger Agreement provides that if any of the Offer in a manner other than tender offer conditions are not satisfied or waived by the Purchaser as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with of any then scheduled expiration time for the terms of this AgreementOffer, then the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoingPurchaser may, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time ifin its sole discretion, at extend the scheduled or extended expiration time for the Offer beyond the latest expiration date of that would otherwise be permitted under the OfferMerger Agreement (but not beyond the Termination Date). In addition, any of the Purchaser: • may extend the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the its staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of Offer; • may, and if the Offer Conditions is not satisfied or waived on any scheduled expiration date of Company so requests, the OfferPurchaser shall, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be provide for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 of the Exchange Act.
; • may extend the Offer for 10 business days after the latest applicable expiration date otherwise permitted under the Merger Agreement (dbut not beyond the Termination Date) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) at least 90% of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly outstanding shares have not been tendered and not withdrawn pursuant to the Offer or if there has been a commencement of a war or other national calamity (including terrorist activity) directly involving the United States; and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer• shall, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent subject to cause Merger Sub) its right to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 Merger Agreement is terminated in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly be required to correct any information provided by it for use in the Schedule TO and extend the Offer Documents after the latest applicable expiration date of the Offer if and to any of the extent that such information events set forth in subsections (a), (b) or (d) described in Section 15 — “Certain Conditions of the Offer” shall have become (or shall have become known to be) false or misleading in any material respect. Parent occurred and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected be continuing unless such conditions could not reasonably be expected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made satisfied or waived by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECTermination Date.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Offer to Purchase (Molex Inc)
The Offer. (a) Prior Subject to the date terms and conditions of this Agreement, Merger Sub and provided that (i) commenced this Agreement shall not have been terminated in accordance with Section 10.1 and (ii) the Company shall have timely complied in all material respects with its obligations to provide the required information to Merger Sub under Section 2.1(f) and Section 2.2, on December 12, 2024, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase all of the outstanding Shares (other than Shares to be canceled pursuant to Section 3.2(b) or Section 3.4 (collectively, the “Excluded Shares”)), at a price per Share equal to the Offer Price, in cash, without interest. The Offer shall be subject to the conditions set forth in Annex I hereto (the “Offer Conditions”). The date of such commencement, on which ▇▇▇▇▇▇ Sub commences the Offer is referred to as the “Offer Commencement Date.”
(b) Merger Sub expressly reserves the right to, at any time and to the extent permitted by applicable Law, (x) increase the Offer Price and/or (y) waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer not inconsistent with the terms of this Agreement; provided that, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Merger Sub and Parent shall not:
(i) waive or change the Minimum Condition (as defined in Annex I) or the conditions set forth in clauses B, C and H of Annex I;
(ii) decrease the Offer Price (other than an adjustment made pursuant to Section 3.6);
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Shares (or narrow or otherwise diminish or reduce the classes of Shares) subject to the Offer;
(v) extend or otherwise change the expiration date of the Offer except as otherwise required or expressly permitted herein;
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects any holder of the Shares (in their capacity as such); or
(vii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act.
(c) The Offer shall expire one minute after 11:59 p.m., Eastern time, on the date that is twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) from the Offer Commencement Date (such time, the “Expiration Time”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.1 (in which event the term “Expiration Time” shall mean the time and date that the Offer, as so extended, may expire).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless (x) this Agreement shall have been terminated in accordance with Section 10.1 or (y) Merger Sub receives the prior written consent of the Company:
(i) Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, the Offer Document or any period otherwise required by the rules and regulations of Nasdaq or applicable Law (including in order to comply with Rule 14e-1(b) promulgated under the Exchange Act in respect of the Offer Price);
(ii) if, at the initial Expiration Time or any subsequent time as of which the Offer is scheduled to expire, any of the Offer Conditions (other than the Minimum Condition and any such conditions that by their nature are to be satisfied at the expiration of the Offer (provided such conditions would be capable of being satisfied or validly waived were the expiration of the Offer to occur at such time)) have not been satisfied or waived (to the extent waivable by Merger Sub or Parent), then Merger Sub shall extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Time or such subsequent Expiration Time for successive extension periods (the length of each such individual extension period not to exceed ten (10) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)); and
(iii) if, at the initial Expiration Time or any subsequent time as of which the Offer is scheduled to expire, each of the Offer Conditions (other than the Minimum Condition, and other than any such conditions that by their nature are to be satisfied at the expiration of the Offer (provided such conditions would be capable of being satisfied or validly waived were the expiration of the Offer to occur at such time)) has been satisfied or waived (to the extent waivable by Merger Sub or Parent) and the Minimum Condition has not been satisfied, then Merger Sub may, and, at the request in writing of the Company, Merger Sub shall, extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Time or such subsequent Expiration Time for successive extension periods (the length of each such individual extension period not to exceed ten (10) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)); provided, however, that in no event shall Merger Sub be required to extend the expiration of the Offer pursuant to this clause (iii) for more than twenty-five (25) Business Days in the aggregate; provided, however, that notwithstanding the foregoing clauses (i), (ii) filed and (iii), in no event shall Merger Sub be required to extend the Offer beyond the earlier of (x) the Outside Date or (y) the termination of this Agreement in accordance with Section 10.1. In no event shall Merger Sub be permitted to terminate the Offer prior to the Expiration Time, unless this Agreement has been previously terminated. In the event this Agreement is terminated pursuant to Section 10.1, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within one (1) Business Day of such termination), irrevocably and unconditionally terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Merger Sub prior to the acceptance for payment and payment for Shares tendered in the Offer, Merger Sub shall promptly return (or cause to be returned), in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(e) Upon the terms and subject to the conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, no later than two (2) Business Days after the expiration of the Offer (as it may be extended in accordance with this Agreement), all Shares validly tendered and not validly withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”).
(f) On the Offer Commencement Date, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including all exhibits thereto, the “Schedule TO”) that included shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (and any other appropriate ancillary documents) (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iiiii) caused cause the appropriate Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) laws or other applicable Law. Parent and ▇▇▇▇▇▇ Sub agree that they shall cause the Offer Documents to comply in all material respects with the Exchange Act and all other applicable Laws. The Offer is subject only Company shall furnish to the conditions set forth in Annex I hereto (the “Offer Conditions”). Parent and Merger Sub expressly reserves the right information relating to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease Company’s Subsidiaries and the Offer Price;
(iii) change Company’s Stockholders required by the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions Exchange Act or other requirements to the Offer;
(vi) otherwise amend, modify applicable Laws or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) requested by Parent or Merger Sub, of each of Sub to be set forth in the Offer Conditions.
(e) Document, and to enable Parent and Merger Sub shall not terminate to comply with their obligations of this Section 2.1(f); provided, however, that no covenant is made by Parent or Merger Sub regarding the inclusion of any information regarding the Company, the Company’s Subsidiaries or the Company’s Stockholders in the Offer prior Document. Parent will furnish to any scheduled expiration date without the prior written consent of the Company except the information relating to Parent or Merger Sub required by the Exchange Act or other applicable Laws or reasonably requested by Parent or Merger Sub to be set forth in the event that this Agreement is terminated in accordance Solicitation/Recommendation Statement on Schedule 14D-9 (together with its terms.
(f) any amendments or supplements thereto, the “Schedule 14D-9”). Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by applicable Law, or to correct any material omissions therefrom; provided, however, that no covenant is made by Parent, or Merger Sub with respect to the information supplied by or on behalf of the Company for inclusion or incorporation by reference in the Offer Document. Parent and Merger Sub have used, and shall use, use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the appropriate Offer Documents as so corrected to be disseminated to holders of Shares, in each case case, to the extent required by applicable federal securities lawslaws or the rules or regulations of Nasdaq, in each case, as soon as reasonably practicable. The Except after a Company Board Recommendation Change or in response to any disclosures made by the Company in compliance with Section 7.3, the Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counselcounsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Each of Parent and Merger Sub shall (A) respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer and (B) except after a Company Board Recommendation Change or in response to any disclosures made by the Company in compliance with Section 7.3, provide the Company and its counsel with (ix) any written comments or other written communications (and a summary of all substantive oral comments or communications, whether written or oral, ) that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (iiy) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments to Parent and Merger Sub on that response as soon as reasonably practicable (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to . Parent, Merger Sub and the Company will each comply in all material respects with applicable Law and the rules and regulations of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to Nasdaq in connection with the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Revance Therapeutics, Inc.)
The Offer. Provided that none of the events set forth in Annex A hereto shall have occurred or be existing, Subsidiary, as promptly as practicable, but in any event within five business days of the public announcement of this Plan of Merger, shall commence a tender offer (athe "Offer") Prior for all outstanding Shares at a price of $5.00 per Share, net to the date seller in cash. Assuming the prior satisfaction or waiver of this Agreementthe conditions to the Offer set forth in Annex A hereto, Merger Sub Subsidiary will accept for payment all Shares validly tendered pursuant to the Offer, and not withdrawn, as soon as legally permissible and shall pay for all such Shares as soon as practicable thereafter. The Offer initially shall expire on the twentieth business day after its commencement; provided, however, that Subsidiary may, without the consent of Target, (i) commenced extend the Offer (on one or more occasions) beyond the scheduled expiration date if at any such date any of the conditions to Subsidiary's obligation to purchase Shares shall not be satisfied or waived, until such commencementtime as such conditions are satisfied or waived, the “Offer Commencement Date”), or (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to extend the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
any rule or regulation of the Securities and Exchange Commission (the "Commission"); provided further that, notwithstanding anything in the foregoing proviso to the contrary, Subsidiary may not, without Target's prior written consent, (A) extend the expiration date of the Offer if the failure to meet any condition to the Offer was directly or indirectly caused by an act or omission of Acquirer or Subsidiary or (B) effect any individual extension under clause (i) in excess of the amount of time reasonably believed by Acquirer to be necessary to satisfy such condition, which shall in no event exceed 10 business days; provided further that if Subsidiary does not consummate the Offer on the initial expiration date, or any extension thereof, due to the failure of one or more conditions in any of paragraphs (a), (b), (c) The or (e) of Annex A to be satisfied, Acquirer shall cause Subsidiary to, and Subsidiary shall, unless Target shall have materially breached this Plan of Merger and failed to cure such breach within 15 days of being notified thereof in writing, extend the Offer one or more times until the earlier of (i) 11:59 p.m. New York City time on the 60th calendar day after the date of this Plan of Merger or (ii) 2 business days after such time as such condition or conditions are satisfied or waived; provided further that Subsidiary shall not be obligated to extend the Offer pursuant to the foregoing proviso if the condition that has not been satisfied is not reasonably capable of being cured or satisfied at or prior to the 60th calendar day after the date of this Plan of Merger. Without the prior written consent of Target, Subsidiary will not decrease the price per Share, decrease the number of Shares being sought in the Offer, change the form of consideration payable in the Offer (other than by adding consideration), add additional conditions to the Offer, or, subject to the rights to extend the Offer as set forth above, make any other change in the terms of the Offer which is adverse to the holders of Shares. It is agreed that the Offer will be subject only to the conditions set forth in Annex I hereto (A hereto, which are for the “Offer Conditions”). Merger Sub expressly reserves the right benefit of Subsidiary and may be asserted or waived by Subsidiary in whole or in part at any time and from time to time, in its sole discretion; provided, however, that Subsidiary may not waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(iiA hereto) decrease the Offer Price;
(iii) change the form of consideration so as to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any acquire less than a majority of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company outstanding Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub shall not terminate the Offer prior to any scheduled expiration date without the prior written consent of Target. As soon as practicable on the Company except in date of commencement of the event that this Agreement is terminated in accordance with its terms.
(f) Each of ParentOffer, Merger Sub Acquirer and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information Subsidiary shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed file with the SEC and the Commission a Tender Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment Statement on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff 14D-1 with respect to the Offer (the "Schedule TO or Offer Documents promptly after receipt 14D-1"), which will contain the offer to purchase and form of those comments or other communications the related letter of transmittal. Acquirer and (ii) a reasonable Subsidiary shall give Target and its counsel the opportunity to participate in review the response of Parent Schedule 14D-1 and Merger Sub any amendments or supplements thereto prior 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 Sub or their counsel in any discussions or meetings being filed with the SEC.
(g) Parent shall cause Commission. Subsidiary may, at any time, transfer or assign to be provided one or more corporations directly or indirectly wholly owned by Acquirer the right to Merger Sub purchase all or any portion of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase tendered pursuant to the Offer, and but any such transfer or assignment shall cause Merger Sub to perform, on a timely basis, all not relieve Subsidiary of Merger Sub’s its obligations under this Agreementthe Offer or prejudice the rights of tendering shareholders to receive payment for Shares properly tendered and accepted for payment.
Appears in 1 contract
The Offer. (a) Prior Provided that no event shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, no later than 5:00 p.m. New York City time on June 3, 2010, Merger Subsidiary shall commence (within the meaning of Rule 14d-2 of the Exchange Act) the Offer. On the date of this Agreementcommencement of the Offer, Merger Sub Subsidiary shall (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) Documents and (iiiii) caused cause the Offer Documents to be disseminated to the holders of Company Shares as and to the extent required by applicable federal securities lawsLaw. Subject to the terms and conditions thereof, the Offer shall remain open until at least 5:00 p.m., New York City time, on the twentieth Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the date the Offer is commenced.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change other changes in the terms of or conditions to the Offer; provided thatprovided, that without the prior written consent of the CompanyCompany (which consent shall require approval by the Committee of Disinterested Directors), Merger Sub Subsidiary shall not:
(i) waive decrease the amount or change the Minimum Condition (as defined form of the consideration to be paid or decrease the number of Shares sought in Annex I);the Offer; 2
(ii) decrease waive the Offer PriceMinimum Tender Condition;
(iii) add to, amend, modify, supplement or otherwise change any of the form of consideration conditions to be paid the Offer set forth in Annex I in any manner that is adverse to the OfferUnaffiliated Shareholders;
(iv) decrease amend any other term of the number of Company Shares sought Offer in any manner adverse to the Offer;Unaffiliated Shareholders; or
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than except as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Dateotherwise provided herein. Notwithstanding the foregoing, without the consent of the Companyclause (v) above, Merger Sub Subsidiary shall, and Parent shall have the right to cause Merger Subsidiary to, extend the Offer (ix) from time to time iffor successive periods not to exceed 10 Business Days each, at until the conditions to the Offer are satisfied or waived if any of the conditions is not satisfied or waived on any scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (iiy) for any the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the OfferLaw; provided, that in no event shall Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not Subsidiary be required or permitted to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business DaysDate. Following expiration of the Offer, Merger Sub Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 14d-l1 of the Exchange Act.
(dc) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditionsconditions to the Offer, Merger Sub Subsidiary shall, and Parent shall cause it Merger Subsidiary to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods)Offer, all Company Shares (i) validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the any Subsequent Offering Period (the time at date on which Company Shares are first accepted for payment under the Offerpayment, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “‘‘Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(fd) Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have usedSubsidiary shall, and shall usecause its Affiliates to, their use reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company Company, the Committee of Disinterested Directors and its their respective counsel shall be given a reasonable opportunity to review and comment on any change amendment to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub Subsidiary shall give reasonable and good faith consideration to any comments made by the Company Company, the Committee of Disinterested Directors and its their respective counsel. Parent and Merger Sub Subsidiary shall provide the Company Company, the Committee of Disinterested Directors and its their respective counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub Subsidiary or their respective Affiliates or 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 those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub Subsidiary or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Emmis Communications Corp)
The Offer. (a) Prior to Except with the date prior written consent of this Agreementthe Majority Lenders, Merger Sub the Borrower must not:
(i) commenced increase, or do anything which might result in an increase of, the cash element of the offer price for the Target Shares to which the Offer (or the date Squeeze-Out Offer relates above a price per share of such commencement, the “Offer Commencement Date”), NOK 340;
(ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to amend or vary any other term or condition of the Offer (together with all amendments and supplements thereto and including exhibits thereto, or the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Squeeze-Out Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with in any amendments or supplements thereto, the “Offer Documents”) and material respect;
(iii) caused do or permit to be done (otherwise than on the instructions of the Norwegian authorities) anything which would cause any material term or condition of the Offer Documents or the Squeeze-Out Offer to be disseminated regarded as having been waived, withdrawn or satisfied;
(iv) save as required by the Norwegian authorities, waive, withdraw or fail to holders enforce any material term or condition of Company Shares the Offer or the Squeeze-Out Offer;
(v) issue any press release or make any statement or announcement which makes reference to the extent Facility or to some or all of the Finance Parties or to the Finance Documents, unless required by applicable federal securities lawslaw, the Code, the Norwegian Stock Exchange (in which case the Borrower must notify the Agent as soon as practicable upon becoming aware of the requirement).
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall notBorrower must:
(i) waive comply with the Code (subject to any waivers granted by the Norwegian Stock Exchange), and all other applicable statutes, laws and regulations relevant in the context of the Offer or change the Minimum Condition (as defined in Annex I)Squeeze-Out Offer;
(ii) decrease promptly supply to the Offer Price;Agent:
(iiiA) change the form copies of consideration to be paid all documents, certificates, notices or announcements received or issued by it (or on its behalf) in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements relation to the Offer;
(viB) otherwise amend, modify at the time of giving any Utilisation Request for a Loan to be used to acquire any Shares a copy of a contract note from the broker or supplement any certificate from the broker as to the levels of acceptances of the Offer Conditions for cash consideration and as to the amounts actually paid or terms of due to be paid to shareholders; and
(C) any other information regarding the Offer in a manner that adversely affects, or could as the Agent may reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.request;
(c) Unless extended pursuant to and in accordance If the Borrower becomes aware of a circumstance or event which if not waived, would entitle Borrower (with the terms of this AgreementNorwegian Stock Exchange’s consent, the Offer shall expire at midnight (New York City timeif needed) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled lapse or extended expiration date of withdraw the Offer, any of it must promptly notify the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange ActAgent.
(d) Subject The Borrower must ensure it will promptly give notice to the terms and conditions set forth in this Agreement and to Agent of the satisfaction or waiver (if permitted hereunder) occurrence of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Expiry Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Single Currency Term Facility Agreement (General Geophysics Co)
The Offer. Provided that this Agreement shall not have been terminated in accordance with Section and 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 (athe "COMMENCEMENT CONDITIONS"), Purchaser shall, in accordance with the applicable provisions of the Dutch Merger Code and the rules and regulations of the Amsterdam Stock Exchange (the "ASE") Prior 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 defined in Section 7.11(a)) (the "COMMENCEMENT DATE") after the Registration Statement (as defined in Section ) is declared effective pursuant to the date Securities Act of this Agreement1933, Merger Sub as amended (i) commenced the "SECURITIES ACT"), by the Securities and Exchange Commission (the "SEC"). The obligation of Purchaser to accept for payment Company Shares properly tendered pursuant to the Offer (the date of such commencement, the “Offer Commencement Date”), (ii"TENDERED SHARES") filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the satisfaction or waiver by Purchaser of the conditions set forth in Annex I B hereto (the “Offer Conditions”"OFFER CONDITIONS"). Merger Sub Purchaser expressly reserves the right right, in its sole discretion (subject to Section 6.2(b)), to waive any Commencement Condition or Offer Condition and make any other changes in the terms and conditions of the Offer (or to extend the Offer beyond a scheduled Expiration Date (as defined in Section 1.3) if any Offer Conditions and to make any change in the terms of or conditions to the Offershall not be satisfied); provided provided, that, without unless previously approved by the prior written consent of the CompanyCompany and Stockholder in writing, Merger Sub shall not:
(i) waive or no change may be made which increases the Minimum Condition (as defined in Annex IB hereto);
(ii) decrease , decreases the Offer Price;
(iii) change price per share payable in the Offer, changes the form of consideration to be paid payable in the Offer;
Offer (iv) decrease other than by adding consideration), reduces the maximum number of Company Shares sought to be purchased in the Offer;
(v) impose additional , or amends the terms of the Offer or Offer Conditions or other requirements imposes conditions or terms to the Offer;
(vi) otherwise amendOffer in addition to those set forth herein which, modify in any such case, are adverse to holders of the Company Shares or supplement make the likelihood of the Offer succeeding more remote in any material respect. 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 or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any ruleit shall, regulationunless this Agreement is terminated pursuant to Section , interpretation or position of the SEC or the staff thereof applicable to extend the Offer or any period otherwise required by applicable Legal Requirementand set a subsequent scheduled Expiration Date, and shall continue to so extend the Offer and set subsequent scheduled Expiration Dates, until the Termination Date (as defined in Section 7.11(j)). If any Purchaser agrees that (i) the initial scheduled Expiration Date of the Offer Conditions is shall be not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond later than the earlier of (x) 60 Business Days following the End Commencement Date and (y) the date that is 30 days after the date on which Purchaser reasonably believes that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to Condition) will be satisfied at or waived (which date may not be fewer than 20 Business Days following the expiration of the OfferCommencement Date) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension 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 shall Conditions are for the benefit of Purchaser and may be for a period of more than five Business Days. Following expiration asserted by Purchaser regardless of the Offercircumstances giving rise to 10 3 any such condition (except for any action or inaction by Purchaser constituting a breach of this Agreement) and, Merger Sub mayexcept 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, provide at any time, transfer or assign to one or more Subsidiaries of Purchaser (organized or incorporated under the Laws of Canada, the United States, The Netherlands or any other jurisdiction, provided, that such other jurisdiction would not impose a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of withholding tax on the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) payment of the Offer ConditionsConsideration (as defined in Section 1.2)) the right to purchase all or any portion of the Tendered Shares, Merger Sub shall, and Parent but any such transfer or assignment shall cause it to, consummate not relieve Purchaser of its obligations under the Offer in accordance with its terms and accept or prejudice the rights of tendering shareholders to receive payment for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Tendered Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Offer Agreement (Seagram Co LTD)
The Offer. (a) Prior to As promptly as practicable after the date hereof, but in no event later than ten Business Days after the date hereof, Acquisition Sub shall commence an offer (the "OFFER") to purchase for cash 14,392,003 Shares (which shall include, for purposes of this Agreement, Merger Sub (i) commenced all Shares issuable in respect of exercisable, in-the-money Company Options which have been "conditionally exercised" by the Offer (holder thereof for purposes of participating in the date of such commencementOffer, the “Offer Commencement Date”), and (ii) filed with all Shares issued prior to the SEC expiration of the Offer upon the conversion of any convertible securities or upon the exercise of any options or warrants) (such number of Shares, the "MAXIMUM NUMBER") at a Tender Offer Statement on Schedule TO with respect price of $70.00 per Share, net to the seller in cash (such price, as may hereafter be increased, the "OFFER PRICE"). The obligation of Acquisition Sub to accept for payment any Shares tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto hereto. The initial expiration date of the Offer shall be the twentieth Business Day following the commencement of the Offer (determined under Rule 14d-1(g)(3) promulgated under the “Offer Conditions”1934 Act). Merger Acquisition Sub expressly reserves the right to waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, without modify the prior written consent terms of the CompanyOffer, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease and increase the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoingPROVIDED that, without the consent of the Company, Merger Acquisition Sub shall have not (i) increase or reduce the right Maximum Number, (ii) reduce the price per Share to be paid pursuant to the Offer, (iii) add to the conditions set forth in Annex I or modify any condition set forth in Annex I, (iv) change the form of consideration payable in the Offer, or (v) otherwise amend the Offer in any manner adverse to the holders of Shares. Acquisition Sub shall extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirementlaw. If any of the conditions to the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Acquisition Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions conditions are satisfied or waived; provided that, in each case, PROVIDED that (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no each such individual extension of the Offer shall be for a period of not more than five ten Business Days, and (ii) Acquisition Sub shall not, without the prior written consent of the Company, extend the Offer beyond the Termination Date. Following expiration Subject to the foregoing and upon the terms and subject to the conditions of the Offer, Merger Acquisition Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods)Offer, all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company including if no Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant withdrawn), but not in excess of the Maximum Number.
(b) As soon as practicable on the date of commencement of the Offer, BMS and Acquisition Sub shall file with the SEC a Tender Offer Statement on Schedule TO (the "SCHEDULE TO") with respect to the Offer shall be subject only (such Schedule TO and such documents included therein pursuant to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of which the Offer Conditions.
(e) Merger Sub shall not terminate will be made, together with any supplements or amendments thereto, 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 in accordance with its terms.
(f) Each of Parent"OFFER DOCUMENTS"). BMS, Merger Acquisition Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent BMS and Merger Acquisition Sub have used, and shall use, their reasonable best efforts agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC SEC. BMS and Acquisition Sub shall deliver or cause to be delivered to the Company, or such other Person as the Company shall designate, the Offer Documents (and any amendments thereto) as so corrected corrected, in such quantities as shall be necessary for dissemination to all holders of Shares and Company Options. The Company shall, at its expense, cause the Offer Documents (and any amendments thereto) to be disseminated to holders of SharesShares and Company Options, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SEC, SEC or disseminated to the holders of Shares and Parent Company Options. BMS and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Acquisition Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that ParentBMS, Merger Acquisition Sub or their its 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 such comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECcommunications.
(gc) Parent Each certificate for Shares issued to Acquisition Sub representing Shares accepted for purchase and paid for by Acquisition Sub in the Offer shall cause to be provided to Merger Sub all of bear a legend in substantially the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offerfollowing form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCKHOLDER AGREEMENT, and shall cause Merger Sub to performDATED SEPTEMBER 19, on a timely basis2001, all of Merger Sub’s obligations under this AgreementAMONG IMCLONE SYSTEMS INCORPORATED, ▇▇▇▇▇▇▇-▇▇▇▇▇ SQUIBB COMPANY AND ▇▇▇▇▇▇▇-▇▇▇▇▇ SQUIBB BIOLOGICS COMPANY, A COPY OF WHICH MAY BE OBTAINED FROM THE CORPORATE SECRETARY OF IMCLONE SYSTEMS INCORPORATED.
Appears in 1 contract
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Section 6.1, as promptly as practicable, and in any event within five (5) Business Days, following the date execution of this AgreementAgreement (or such other later date as the parties may mutually agree in writing), Merger Sub (i) commenced Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under Exchange Act) the Offer (to purchase all issued and outstanding Common Shares at the date of such commencementCommon Per Share Amount. The Common Per Share Amount shall be net to the seller in cash, subject to reduction only for any applicable taxes. Subject to Section 1.1(b), the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect obligations of Merger Sub to accept for payment and pay for any Common Shares tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer shall be subject to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the those conditions set forth in Annex I hereto (the “"Tender Offer Conditions”"). The Company agrees that no Common Shares held by the Company or any of its Subsidiaries (other than any Common Shares held on behalf of third parties) will be tendered pursuant to the Offer.
(b) Parent on behalf of itself and Merger Sub expressly reserves the right from time to time, subject to Sections 1.1(c) and (d), to waive any of Tender Offer Condition or increase the Offer Conditions and to make any change in the terms of or conditions to the OfferCommon Per Share Amount; provided thatprovided, however, that without the prior written consent of the Company, Merger Sub shall not:
, and Parent shall cause Merger Sub not to, (i) waive decrease the Common Per Share Amount or change the form of consideration payable in the Offer, (ii) decrease the number of Common Shares sought to be purchased in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I, the "Original Minimum Condition");
(ii) , except that Merger Sub may on a single occasion decrease the Offer Price;
Minimum Condition to a level not less than (iiix) change 56,182,474 Common Shares plus (y) 50% of the form total number of consideration to be paid Common Shares, if any, issued or issuable (solely in the Offer;
case of Common Shares issuable, such Common Shares issuable but not yet issued in response to any notice, duly and validly given (and not subsequently withdrawn) by a holder to the Company on or prior to the Expiration Date, of election to exercise a Company Stock Option or Warrant or to convert Preferred Shares) after the date of this Agreement and prior to the Expiration Date (the "Lowered Minimum Condition"); (iv) decrease impose additional conditions to the number of Company Shares sought in the Offer;
Offer or (v) impose additional make any change in the Offer Conditions that would require an extension or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any delay of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
then current Expiration Date (vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreementan increase in the Common Per Share Amount or a one-time decrease in the Original Minimum Condition to an amount not less than the Lowered Minimum Condition).
(c) Unless extended pursuant to and in accordance with On the terms date of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date commencement of the Offer, any but after affording the Company reasonable opportunity to review and comment thereon, Parent and Merger Sub shall file or cause to be filed with the SEC, with respect to the Offer, a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") that shall contain the Offer, together with a related letter of transmittal, summary advertisement and other ancillary documents and instruments pursuant to which the Offer Conditions will be made (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied collectively, together with any supplements or waivedamendments thereto, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period all deliveries, mailings and telephonic notices required by any ruleRule 14d-3 under the Exchange Act, regulation, interpretation or position the "Offer Documents") that will comply in all material respects with the provisions of all applicable Federal and other securities laws. Parent and Merger Sub further agree to disseminate the SEC or the staff thereof applicable Offer Documents to holders of Common Shares as and to the Offer or any period otherwise extent required by applicable Legal RequirementFederal and other securities laws. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have usedshall, and shall useParent further agrees to cause Merger Sub to, their reasonable best efforts take all steps necessary to cause the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC SEC, and to cause the Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case Common Shares as and to the extent required by applicable federal Federal and other securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents (including each time amendment or supplement thereto) before any such document is they are filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall shall, and Parent agrees to cause Merger Sub to, provide the Company and its counsel with (i) in writing, if written), and to consult with the Company regarding, any comments or other communications, whether (written or oral, ) that may be received by Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or 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.
(d) The Offer shall provide for an initial expiration date on the 20th Business Day following (and including the day of) the commencement of those comments the Offer (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the "Expiration Date"). Parent and Merger Sub shall not, and Parent agrees that it shall cause Merger Sub not to, terminate or withdraw the Offer other communications than in connection with the effective termination of this Agreement in accordance with Section 6.1 hereof. So long as this Agreement has not been terminated pursuant to Section 6.1, if at any scheduled Expiration Date, any of the Tender Offer Conditions (including the Original Minimum Condition or the Lowered Minimum Condition, as applicable) shall not have been satisfied or waived, (i) Parent shall, and shall cause Merger Sub to, extend the Offer at any time and from time to time, at the request of the Company, until such time as such Tender Offer Conditions are satisfied or waived, this Agreement is terminated pursuant to Section 6.1 or it becomes reasonably apparent that such Tender Offer Conditions are not reasonably capable of being satisfied by the End Date; provided, however, that any extension shall be in increments of not more than five (5) Business Days; and provided, further, that in no event shall such extensions exceed an aggregate of twenty (20) Business Days beyond the original Expiration Date without the prior written consent of Parent, and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub may, without the consent of the Company, further extend the Offer beyond the applicable Expiration Date until such time as such Tender Offer Conditions are satisfied or waived, in increments of not more than five (5) Business Days, provided that such extensions shall not in the aggregate exceed sixty-five (65) Business Days (less the aggregate period of any extensions pursuant to those comments clause (i) of this sentence) without the prior written consent of the Company. Notwithstanding the foregoing, except as expressly provided in Section 1.1(b) above, Parent shall not, and shall cause Merger Sub not to, extend the Offer if all of the Tender Offer Conditions have been satisfied or waived and it is permitted under applicable Law to provide comments on accept for payment and pay for Common Shares tendered in the Offer and not validly withdrawn; provided, however, that response if (i) Parent or Merger Sub decreases the Original Minimum Condition to which reasonable an amount not less than the Lowered Minimum Condition in accordance with clause (iii) of Section 1.1(b), (ii) following such change to the Minimum Condition, all of the Tender Offer Conditions are satisfied or waived and good faith consideration (iii) all Common Shares tendered in the Offer and not validly withdrawn have been accepted for payment by Merger Sub and the total number of Common Shares thereby acquired by Merger Sub is less than the Original Minimum Condition, then Parent shall, and shall cause Merger Sub to, extend the Offer for an aggregate period of not less than ten (10) or more than twenty (20) Business Days as a "subsequent offering period" in accordance with Rule 14d-11 under the Exchange Act. Notwithstanding anything to the contrary herein, unless this Agreement has been terminated in accordance with Section 6.1, (x) Parent shall, and shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer and (y) the offering period of the Offer shall be given)tolled for and during any period that a Governmental Entity of competent jurisdiction shall have enacted, including issued or entered any temporary restraining order or preliminary injunction or similar order or legal restraint or prohibition that remains in effect and that enjoins or otherwise prohibits consummation of the Offer, and the offering period of the Offer shall be extended by participating with a number of days equal to the number of days that any such temporary restraining order or preliminary injunction or similar order or legal restraint or prohibition remains in effect. Nothing contained in this Section 1.1(d) shall affect any termination rights in Article VI.
(e) Subject solely to the satisfaction or waiver by Parent and Merger Sub or their counsel of the Tender Offer Conditions in any discussions or meetings accordance with Section 1.1(b), as soon as practicable after the SEC.
applicable Expiration Date, (gi) Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for all Common Shares validly tendered and not withdrawn pursuant to the Offer (the date of such acceptance for payment, the "Acceptance Date"). Parent shall provide or cause to be provided to Merger Sub all of on a timely basis the funds necessary to purchase any Company Common Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Metromedia International Group Inc)
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Article VIII, as promptly as practicable after the date of this Agreementhereof, and in any event on or prior to September 30, 2015, Merger Sub shall (and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer to purchase for cash all issued outstanding shares of Company Common Stock at the Offer Price. The consummation of the Offer, and the obligation of Merger Sub to accept for payment and pay for shares of Company Common Stock tendered pursuant to the Offer shall be subject solely to: (i) commenced there being validly tendered in the Offer (in the date aggregate) and not properly withdrawn prior to the Expiration Date that number of shares of Company Common Stock which, together with the number of shares of Company Common Stock (if any) then owned of record by Parent or any of its wholly-owned direct or indirect Subsidiaries, including Merger Sub, or with respect to which Parent or any of its wholly-owned direct or indirect Subsidiaries, including Merger Sub, otherwise has, directly or indirectly, voting power, represents at least a majority of the shares of Company Common Stock then outstanding (determined on a Fully Diluted Basis) (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex A (such commencementconditions and requirements, together with the Minimum Condition, the “Offer Commencement DateConditions”). The Offer Conditions are for the sole benefit of Merger Sub and may be asserted by Merger Sub regardless of the circumstances giving rise to such condition or may be waived by Merger Sub, in its sole discretion, in whole or in part at any time and from time to time, subject to this Section 1.1. For purposes of clarity, Merger Sub may not waive the Minimum Condition.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Merger Sub, of the other Offer Conditions as of the Expiration Date, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer promptly after the Expiration Date. Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for any and all shares of Company Common Stock that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be paid to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law, 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 to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other Offer Conditions. To the extent permitted by applicable Law, Merger Sub expressly reserves the right (in its sole discretion) to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that except with the prior written approval of the Company, Merger Sub shall not (i) decrease the Offer Price, (ii) filed change the form of consideration payable in the Offer, (iii) reduce the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (iv) amend, modify or waive the Minimum Condition, (v) amend any of the other Offer Conditions in a manner adverse to the holders of shares of Company Common Stock, (vi) impose conditions to the Offer that are in addition to the Offer Conditions, (vii) except as provided in Section 1.1(e), terminate, accelerate, extend or otherwise modify or amend the Expiration Date, or (viii) otherwise modify or amend any of the other terms of the Offer in a manner adverse in any material respect to the holders of shares of Company Common Stock. For the avoidance of doubt, in no event shall any waiver by Parent or Merger Sub of any condition to the Offer (other than the Minimum Condition) in accordance with the SEC terms of this Agreement be deemed to be a modification or amendment of the Offer that is adverse to the holders of shares of Company Common Stock.
(d) Unless extended in accordance with Section 1.1(e), the Offer shall expire at 12:00 midnight (New York City time) at the end of the day that is 20 Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with Section 1.1(e), 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 at any then scheduled Expiration Date, any of the Offer Conditions (including the Minimum Condition) have not been satisfied, or waived (to the extent permitted by the terms of this Agreement and applicable Law) by Merger Sub, unless Merger Sub shall have terminated the Offer pursuant to Section 1.1(i), Merger Sub shall extend the Offer for successive periods of up to 20 Business Days each, the length of each such period to be determined by Merger Sub in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that Merger Sub shall not be required to extend, and shall not extend without the consent of the Company, the Offer beyond the End Date if any condition to the Offer has not been satisfied at or prior to the End Date. In addition, notwithstanding anything to the contrary in the prior sentence, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) If necessary to obtain sufficient shares of Company Common Stock to reach the Short Form Threshold after the Expiration Date (assuming full exercise of the Top-Up Option), Merger Sub shall provide for one “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, as determined in the sole discretion of Parent and Merger Sub, of not less than three or more than 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) promulgated under the Exchange Act). Subject to the terms and conditions of this Agreement and the Offer, Merger Sub shall (and Parent shall cause Merger Sub to) immediately accept for payment, and pay for, all shares of Company Common Stock that are validly tendered pursuant to the Offer during each such “subsequent offering period.” Without limiting the generality of the foregoing, Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase 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) Subject to Section 1.1(i), Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement has been terminated in accordance with Article VIII. If this Agreement is terminated in accordance with Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within one Business Day of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the purchase of shares of Company Common Stock in the Offer, including pursuant to Section 1.1(i), Merger Sub shall (and Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof and Merger Sub shall not (and Parent shall cause Merger Sub not to) accept any shares of Company Common Stock pursuant to the Offer.
(h) As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and). The Schedule TO shall include, as exhibits, the Offer to Purchase and Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments or amendments, supplements and exhibits thereto, the “Offer Documents”) ). Merger Sub may, but shall not be required to, provide guaranteed delivery procedures for the tender of shares of Company Common Stock in the Offer; provided, however, if Merger Sub provides guaranteed delivery procedures, for purposes of determining whether the Minimum Condition has been satisfied, Parent and (iii) caused Merger Sub shall include for purposes of its determination thereof shares of Company Common Stock tendered in the Offer pursuant to guaranteed delivery procedures if and only if shares of Company Common Stock have been delivered pursuant to such guarantees as of the Expiration Date. Parent and Merger Sub agree to cause the Offer Documents to be disseminated to holders of shares of Company Shares Common Stock, as and to the extent required by applicable federal securities laws.
(b) The Offer is subject only to Law, including the conditions set forth in Annex I hereto (the “Offer Conditions”)Exchange Act. Parent and Merger Sub expressly reserves shall cause the right to waive any of Schedule TO and the Offer Conditions Documents to comply as to form in all material respects with the requirements of applicable Law. Parent and to make any change in Merger Sub, on the terms of or conditions to the Offer; provided thatone hand, without the prior written consent of and the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after other hand, agree to promptly notify the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) Party and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. Parent respect or as otherwise required by applicable Law, and Merger Sub have used, and shall use, their reasonable best efforts agrees to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Common Stock, in each case case, as and to the extent required by applicable federal securities lawsLaw, including the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Sub shall provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Parent and Merger Sub or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments such comments, and any written or other communications oral responses thereto. The Company and (ii) its counsel shall be given a reasonable opportunity to participate in the response of review any such responses and Parent and Merger Sub shall give due consideration to those comments the reasonable additions, deletions or changes suggested thereto by the Company and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SECits counsel.
(gi) If any Offer Condition shall not have been satisfied or, to the extent waivable by Parent shall cause or Merger Sub, waived prior to be provided to November 2, 2015, then Merger Sub may at any time prior to November 13, 2015, irrevocably and unconditionally terminate the Offer. If the Offer is terminated pursuant to this Section 1.1(i), the Company shall proceed with and take all actions necessary to hold the Company Stockholders Meeting in accordance with the terms of Section 6.5. The termination of the funds necessary Offer pursuant to purchase any Company Shares that this Section 1.1(i) is referred to in this Agreement as the “Offer Termination”. Notwithstanding anything to the contrary in this Section 1.1(i), if this Agreement is terminated pursuant to Article VIII, then Merger Sub becomes obligated to purchase shall promptly (and, in any event, within two Business Days of such termination), irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant to the Offer. If the Offer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, including this Section 1.1(i), or this Agreement is terminated in accordance with Article VIII, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to perform, on a timely basisreturn, all tendered shares of Merger Sub’s obligations under Company Common Stock to the registered holders thereof to the extent required by the terms of the Offer. The Parties hereto acknowledge and agree that the Offer Termination shall not give rise to a right of termination of this Agreement unless to the extent expressly provided for in Article VIII and that, absent such termination of this Agreement, the obligations of the Parties other than those related to the Offer shall continue to remain in effect, including those obligations with respect to the Merger.
Appears in 1 contract
The Offer. (a) Prior Subject to the date terms and conditions of this Agreement, Merger Sub (i) commenced the Offer Offeror agrees to mail no later than the Latest Mailing Date to the holders of Shares (the date "Shareholders") of the Company an offer to purchase all of the outstanding Shares, including Shares issuable (and that, prior to the Expiry Time, are actually issued or are conditionally issued pursuant to Section 1.5) upon the exercise of Options, but excluding Shares owned by the Offeror and its affiliates, for consideration per Share of $13.75 in cash (as such commencementoffer may be amended or extended from time to time as permitted under this Agreement, the “"Offer"). The Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect shall be subject only to the Offer (together with all amendments terms and supplements thereto and including exhibits thereto, the “conditions set out in Schedule TO”) that included the summary term sheet required thereby and"B" to this Agreement, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together such may be amended in accordance with any amendments or supplements thereto, the “Offer Documents”Section 1.1(c) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawshereof.
(b) The Offer will be made in all material respects in accordance with Applicable Laws and with applicable securities legislation in jurisdictions other than Canada where registered Shareholders are located in the English language and, if necessary under the Applicable Laws, the French language, provided that the Offeror shall not be required to make the Offer in any jurisdiction, other than Canada or the United States, where it would be illegal or, in the reasonable opinion of the Offeror, inadvisable to do so. The Offer will be open for acceptance until a time that is not earlier than 9:00 p.m. (Toronto time) on the 36th day, after the day that the Offer is mailed to Shareholders, or such later time and date as may be required by Applicable Laws, subject only to the right of the Offeror in its sole discretion to extend from time to time the period during which Shares may be deposited under the Offer if the conditions set forth in Annex I Schedule "B" hereto are not satisfied on the expiry date of the Offer as it may be extended (the “Offer Conditions”time at which the Offer, as it may be extended, expires being referred to as the "Expiry Time"). Merger Sub Subject to the satisfaction or waiver of the conditions set forth in Schedule "B" hereto, the Offeror shall within the time periods required by Applicable Laws take up and pay for all Shares validly tendered (and not properly withdrawn) pursuant to the Offer as soon as practicable after the Expiry Time. The Offeror shall use its commercially reasonable efforts to consummate the Offer, subject only to the terms and conditions hereof.
(c) The Offeror expressly reserves the right right, in its sole discretion, to modify or waive any term or condition of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided except that, without the prior written consent of the Company, Merger Sub the Offeror shall not:
(i) waive or change reduce the Minimum Condition (as defined in Annex I)consideration per Share;
(ii) decrease the Offer Price;
(iii) change the form of consideration payable under the Offer (other than to be paid add additional consideration);
(iii) otherwise add to, amend or change any of the Offer terms or conditions in a manner materially adverse to the OfferShareholders;
(iv) increase the Minimum Tender Condition or decrease the Minimum Tender Condition to less than 50.01% of the outstanding Shares on a fully-diluted basis; or
(v) decrease the number of Company Shares sought under the Offer.
(d) The Offeror agrees to provide the Company with a draft copy of the Offer and Circular, the letter of transmittal, the notice of guaranteed delivery and any other documents required to be mailed by the Offeror to Shareholders under Applicable Laws in connection with the Offer, and any supplements or amendments to such documents (such documents, collectively, the "Offer Documents") prior to the filing or mailing thereof, on a confidential basis, and to provide the Company with a reasonable opportunity (to the extent possible with respect to supplements and amendments) to review and provide comments thereon, recognizing that whether or not such comments are reflected in the OfferOffer Documents will be determined by the Offeror, acting reasonably. The Company shall provide to the Offeror all information pertaining to the Company and its Subsidiaries that is reasonably requested by the Offeror and is necessary or desirable for the preparation of the Circular.
(e) The obligation of the Offeror to make the Offer 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 and all of which may be waived by the Offeror in whole or in part in its sole discretion (other than the condition in paragraph 0 below, which may be waived only with the consent of the Company) without prejudice to any other rights it may have under this Agreement, which conditions shall be deemed to have been satisfied or waived upon the Offer being made:
(i) the obligations of the Offeror hereunder shall not have been terminated pursuant to Section 0;
(ii) no circumstance, fact, change, event or occurrence caused by a person other than the Offeror shall have occurred that would render it impossible for one or more of the conditions set out in Schedule "B" to be satisfied;
(iii) the board of directors of the Company shall have received the advice of its financial advisors and the board of directors of the Company shall have unanimously resolved to recommend that Shareholders accept the Offer and shall not have withdrawn such recommendation or changed, modified or qualified such recommendation or taken any other action or made any other public statement in connection with the Offer inconsistent with the determinations and recommendations referred to in Section 1.2(a);
(iv) the Company's financial advisor shall have delivered a written form of the opinion described in Section 1.2(b);
(v) impose additional Offer Conditions no cease trade order, injunction or other requirements to prohibition at law (other than in China) shall exist against the Offeror making the Offer or taking up or paying for the Shares deposited under the Offer;
(vi) otherwise amendfollowing the date hereof, modify or supplement there shall not have occurred any Material Adverse Effect in respect of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; orCompany;
(vii) extend to the extent that any covenants set forth herein may be performed or otherwise change complied with prior to the expiration date of the Offer Offer, the Company shall have complied in a manner other than as contemplated by this Agreement.all material respects with such covenants;
(cviii) Unless extended pursuant the Offeror shall have received from all applicable Government Authorities (A) all waivers, rulings, consents, approvals or orders on such terms as it, acting reasonably, deems necessary for the making of the Offer and the mailing of the Offer Documents to Shareholders, and (B) assurances satisfactory to the Offeror, acting reasonably, that all waivers, rulings, consent, approvals or orders for the consummation of the Offer will be obtained before the Expiry Time, in each case excluding PRC Approvals;
(ix) no later than one business day prior to the Latest Mailing Date, the Company shall have delivered to the depositary under the Offer, at its offices in Toronto, Ontario for mailing with the Offer Documents a sufficient quantity of commercial copies of the Directors' Circular prepared in accordance with the terms of this Agreement, ; and
(x) lock-up agreements shall have been duly executed and delivered by Shareholders holding an aggregate of not less than 42% of the Offer shall expire at midnight Shares (New York City timeincluding Shares issuable upon exercise of the Options) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoinga fully-diluted basis, without the consent including all of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date directors and officers of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) Company and shall not have been satisfied breached or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Actterminated.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to the date Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “"Tender Offer Conditions”") shall exist after the date hereof and prior to the commencement of the Offer, as promptly as practicable, but not later than March 20, 2000, Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase all outstanding Common Shares at the Offer Price and shall take the actions set forth in Section 1.3 below and shall take all other actions as required by any order, writ, injunction, judgment, arbitration award, agency requirement, decree, law, statute, ordinance, rule or regulation (each a "Law"). Merger Sub expressly reserves The obligation of Purchaser to accept for payment or pay for any Common Shares tendered pursuant thereto will be subject only to the right to waive any satisfaction of the Tender Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, without Conditions.
(b) Without the prior written consent of the CompanySpecial Committee and the Company Board, Merger Sub Purchaser shall not:
not (i) waive or change impose conditions to the Minimum Condition (as defined Offer in Annex I);
addition to the Tender Offer Conditions, (ii) decrease modify or amend the Tender Offer Conditions or any other term of the Offer in a manner adverse to the holders of Common Shares, (iii) reduce the number of Common Shares subject to the Offer, (iv) reduce the Offer Price;
, (iiiv) except as provided in the following sentence, extend the Offer if all of the Tender Offer Conditions are satisfied or waived, or (vi) change the form of consideration to be paid payable in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, Purchaser may, in accordance with applicable Law, and without the consent of the CompanySpecial Committee, Merger Sub shall have the right to extend the Offer at any time, and from time to time, (i) from time to time if, if at the then-scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) Purchaser's obligation to accept for payment and pay for all Common Shares shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and ; (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the its staff thereof applicable to the Offer Offer; or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or (iii) if all Tender Offer Conditions are satisfied or waived; provided thatwaived but the number of Common Shares tendered, in each casetogether with Common Shares already beneficially owned by Parent, is at least equal to 66 2/3%, but less than 90%, of the then-outstanding number of Common Shares, for an aggregate period of not more than 20 business days (for all such extensions) beyond the latest expiration date that would be permitted under clause (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and or (ii) no of this sentence (such individual extension of aggregate period, the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“"Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in "). So long as this Agreement and to the satisfaction or waiver (if permitted hereunder) of is in effect, the Offer Conditionshas been commenced and the Tender Offer Conditions have not been satisfied or waived, Merger Sub Purchaser shall, and Parent shall cause it Purchaser to, consummate cause the Offer in accordance not to expire, subject, however, to Purchaser's and Parent's rights of termination under this Agreement. Parent and Purchaser shall comply with its terms and accept for the obligations respecting prompt payment and pay for, as promptly as practicable (i) after announcement under the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in Exchange Act. There shall be no withdrawal rights during the Subsequent Offering Period Period.
(c) Parent and Purchaser represent that the time at which Company Shares are first accepted for payment under Offer Documents (as defined in Section 1.3(a)) will comply in all material respects with the Offerprovisions of applicable federal securities Laws and, the “Acceptance Time” and on the date filed with the SEC and on which Company Shares are the date first accepted for payment under the Offerpublished, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant sent or given to the Offer Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be subject only stated therein or necessary in order to make the satisfactionstatements made therein, or waiver (to in light of the extent permitted hereunder) circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub, of each of Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Documents. Each of ParentParent and Purchaser, Merger Sub on the one hand, and the Company Company, on the other hand, agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. Parent respect and Merger Sub have used, and shall use, their reasonable best efforts Purchaser further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECLaws.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Metropolitan Life Insurance Co/Ny)
The Offer. (a) Prior to Provided that (i) this Agreement shall not have been terminated in accordance with Section 11.01 and (ii) the Company shall have complied with its obligations under Section 2.02, as promptly as practicable after the date hereof, but in no event later than 10 Business Days following the date of this Agreement, Merger Sub Subsidiary shall, and Parent shall cause it to, commence (iwithin the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) commenced the Offer to purchase for cash all of the outstanding Shares at the Offer Price. The Offer shall be subject to the Minimum Condition (as defined in Annex I) and the satisfaction, or waiver by Parent or Merger Subsidiary, of the other conditions set forth in Annex I hereto (together with the Minimum Condition, the “Offer Conditions”). The date on which Merger Subsidiary commences (within the meaning of such commencement, Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer is referred to as the “Offer Commencement Date”.
(b) Parent and Merger Subsidiary expressly reserve the right to waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer, including raising the Offer Price; provided that, without the prior written consent of the Company or unless otherwise expressly contemplated by this Agreement, neither Parent nor Merger Subsidiary shall:
(i) waive or change the Minimum Condition;
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend the expiration date of the Offer except as otherwise provided herein; 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 that adversely affects the holders of the Shares.
(c) Unless extended as provided in this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) Merger Subsidiary shall, and Parent shall cause it to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or Nasdaq applicable to the Offer or for any period otherwise required by Applicable Law, (ii) filed if, on or prior to any then scheduled Expiration Date, any of the conditions set forth in clauses (e) through (h) on Annex I have not been satisfied and have not been waived, then Merger Subsidiary shall, and Parent shall cause it to, upon the written request of the Company no less than one Business Day prior to any then scheduled Expiration Date, extend the Offer, up to an aggregate of 20 Business Days (whether in one or more periods as so requested by the Company), in order to permit the satisfaction of such conditions and (iii) if, on or prior to any then scheduled Expiration Date, any of the conditions set forth in clauses (a) through (d) on Annex I have not been satisfied and have not been waived, then Merger Subsidiary shall, and Parent shall cause it to extend the Offer for one or more periods ending no later than the End Date to permit the satisfaction of such conditions. The Offer may be terminated prior to the then scheduled Expiration Date, but only if this Agreement is validly terminated in accordance with Article 11. If this Agreement is validly terminated pursuant to Article 11, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) promptly (and in any event within two Business Days of such termination), irrevocably and unconditionally terminate the Offer. If this Agreement is validly terminated prior to the acceptance for payment of Shares in the Offer, Merger Subsidiary shall promptly return, and shall cause any depositary acting on behalf of Merger Subsidiary to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof. Notwithstanding the foregoing, Merger Subsidiary shall, if requested by the Company, provide for a subsequent offering period (and one or more extensions thereof) (“Subsequent Offering Period”) of up to 20 Business Days, in accordance with Rule 14d-11 of the 1934 Act, if, at the commencement of the Subsequent Offering Period, (x) the Short Form Threshold has not been reached and (y) the Top-Up Option is not exercisable hereunder in accordance with its terms. Subject to the terms and conditions of this Agreement and the Offer, Merger Subsidiary shall, and Parent shall cause it to, immediately accept for payment and promptly pay for all Shares as they are validly tendered during such Subsequent Offering Period and in any event in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the 1934 Act. The Offer Documents will provide for the possibility of a Subsequent Offering Period in a manner consistent with the terms of this Section 2.01(c).
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction of the Minimum Condition and the satisfaction or waiver of the other Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, as promptly as practicable after Merger Subsidiary is legally permitted to do so under Applicable Law, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”). The obligation of Merger Subsidiary to accept for payment and pay for all Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the Minimum Condition and the satisfaction or waiver of each of the other Offer Conditions (and shall not be subject to any other conditions). 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, less any withholding of Taxes required by Applicable Law.
(e) As soon as practicable on the Offer Commencement Date, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and Purchase, a form of letter of transmittal and transmittal, a form of summary advertisement and any schedule or form required to be filed pursuant to the Instructions to Schedule TO (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iiiii) caused cause the Offer Documents to be disseminated to holders of Company Shares Shares, in each case, as and to the extent required by applicable federal securities laws.
Applicable Law (b) The Offer is subject only to including the conditions set forth in Annex I hereto (the “Offer Conditions”1934 Act). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the The Offer shall be for a period of more than five Business Days. Following expiration of conducted in compliance with Applicable Law (including the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange 1934 Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Parent and Merger Subsidiary shall cause the Offer Documents to (i) comply with the applicable requirements of the 1934 Act and (ii) not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, no covenant is made by Parent or Merger Subsidiary with respect to information supplied by the Company for inclusion in the Offer Documents. Parent and Merger Subsidiary shall cause the information supplied by Parent and its Affiliates specifically for inclusion in the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) or the information statement containing the information required by Section 14(f) of the 1934 Act and Rule 14f-1 promulgated thereunder (together with any amendments or supplements thereto, the “Information Statement”), at the respective times the Schedule 14D-9 or the Information Statement are filed with the SEC not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by Applicable Law. Parent and Merger Sub have used, and Subsidiary shall use, their reasonable best efforts to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC and the 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 Law (including the 1934 Act). The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub Subsidiary shall give reasonable and good faith due consideration to any reasonable comments made by the Company and its counsel. Parent and Merger Sub Subsidiary shall provide the Company and its counsel with (i) copies of any written comments or other communications, whether written or oraland shall inform them of any oral communications, that Parent, Merger Sub Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith due consideration shall be givengiven to reasonable comments), including by participating with . Each of Parent and Merger Sub Subsidiary shall respond as promptly as practicable to any comments of the SEC or their counsel in any discussions its staff with respect to the Offer Documents or meetings with the SECOffer.
(g) Parent shall cause to be provided to Merger Sub Subsidiary all of the funds necessary to purchase any Company Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the OfferOffer (including pursuant to any Subsequent Offering Period), and shall cause Merger Sub Subsidiary to perform, on a timely basis, all of Merger SubSubsidiary’s obligations under this Agreement.
(h) Nothing in this Section 2.01 shall affect any termination rights in Section 11.01.
Appears in 1 contract
The Offer. (a) Prior to the date of this Agreement, Merger Sub Provided that (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), this Agreement shall not have been terminated in accordance with Section 9.1 and (ii) filed with none of the SEC a Tender Offer Statement on Schedule TO with respect events set forth in Annex A hereto that would entitle Parent and Merger Subsidiary to fail to consummate the Offer shall have occurred and be continuing (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby andshall not have been waived by Parent), as exhibitspromptly as practicable, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer to Purchase for any and a form all of letter of transmittal and summary advertisement (collectivelythe Shares, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused at the Offer Documents Price. The obligation of Merger Subsidiary to accept for payment and to pay for any Shares tendered (and the obligation of Parent to cause Merger Subsidiary to accept for payment and to pay for any Shares tendered) shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to (i) the condition that at least 80% of the outstanding Shares be validly tendered and not withdrawn (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto (the “Offer Conditions”). A. Merger Sub Subsidiary expressly reserves the right to waive any of increase the Offer Conditions and Price or to make any change other changes in the terms and conditions of or conditions to the Offer; provided thatprovided, without however, that unless previously approved by the prior written consent of the CompanyCompany in writing, Merger Sub shall not:
no change may be made that (i) waive decreases the Offer Price or change the Minimum Condition (as defined in Annex I);
Cash Portion or the Stock Portion thereof, (ii) decrease the Offer Price;
(iii) change changes the form or combination of consideration to be paid in the Offer;
, (iii) reduces the number of Shares to be purchased in the Offer, (iv) decrease amends the number conditions set forth in Annex A to broaden the scope of such conditions, add any additional conditions, or otherwise adversely affect the holders of Shares, (v) extends the Offer except as provided in Section 1.1(b), or (vi) 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 Merger Subsidiary and may be waived by Parent and Merger Subsidiary, 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 Company approval is required. The failure by Parent and Merger Subsidiary at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares sought held by the Company or its Subsidiary will be tendered in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(cb) Unless extended pursuant Subject to and in accordance with the terms of this Agreementand conditions thereof, the Offer shall expire at midnight (midnight, New York City time) , on the twentieth Business Day date that is twenty (20) business days after the date the Offer Commencement Date. Notwithstanding the foregoingis commenced; provided, however, that without the consent of the CompanyCompany Board (the "Company Board"), Merger Sub shall have the right to extend the Offer Subsidiary may (i) from time to time ifextend the Offer, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions time as such conditions are satisfied or waived (if permitted hereunder) and waived, but not beyond the termination of this Agreement pursuant to Article IX; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer Offer; or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (iiii) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide include a subsequent offering period (“Subsequent Offering Period”) as such term is defined in accordance with Rule 14d-11 of 14d-1 under the Exchange Act.
) to the Offer for a period up to twenty (d20) business days. Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditionsand this Agreement, Merger Sub shall, Subsidiary shall (and Parent shall cause it Merger Subsidiary to, consummate the Offer in accordance with its terms and ) accept for payment payment, and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted that Merger Subsidiary becomes obligated to accept for payment under and pay for pursuant to the Offer, as promptly as practicable after the “Acceptance Time” and expiration of the date on which Company Shares are first accepted for Offer. No fraction of a share of Parent Common Stock will be issued in connection with the payment under of the Stock Portion upon consummation of the Offer, but in lieu thereof each tendering shareholder who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) in the “Acceptance Date”Offer shall receive from Parent an amount of cash (rounded to the nearest whole cent), without interest, equal to the product obtained by multiplying such fraction by the closing price of one (1) share of Parent Common Stock on the first date Merger Subsidiary accepts Shares for exchange in the Offer, as reported on the Nasdaq National Market ("Nasdaq"). The obligation With respect to any such Shares the Cash Portion shall be net to the seller thereof in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller.
(c) As soon as practicable after the date of Merger Sub (this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S-4 to register the offer and sale of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn Common Stock pursuant to the Offer (the "Registration Statement"). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) promulgated under the Exchange Act (the "Preliminary Prospectus"). As soon as practicable on the date the Offer is commenced, Parent and Merger Subsidiary shall be subject only file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the satisfactionOffer and shall cause the Offer Documents to be disseminated to holders of Shares. The Schedule TO shall contain as an exhibit or incorporate by reference the Preliminary Prospectus (or portions thereof) and forms of the related letter of transmittal and summary advertisement, if any. Parent and Merger Subsidiary agree that they shall cause the Schedule TO, the Preliminary Prospectus and all amendments or waiver supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws (as defined in Section 4.1(c)). Parent and Merger Subsidiary further agree that the Offer Documents, on the date first published, sent or given to the extent permitted hereunder) Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger SubSubsidiary with respect to information supplied by the Company or any of its shareholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, of each in light of the Offer Conditions.
(e) Merger Sub shall circumstances under which they were made, 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 in accordance with its terms.
(f) misleading. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and Registration Statement or the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and shall use, their reasonable best efforts Subsidiary further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's shareholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO TO, the Registration Statement and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall Subsidiary agree to provide in writing to the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such comments or other communications and (ii) shall provide Company and its counsel with a reasonable opportunity to participate in the response of Parent and or Merger Sub Subsidiary to those comments such comments. Parent shall use all reasonable efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after its filing and to provide comments on that response (to which reasonable and good faith consideration maintain such effectiveness for so long as shall be given), including by participating with required for the issuance of Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase Common Stock pursuant to the Offer. Following the time the S-4 is declared effective, and Parent shall cause Merger Sub file the final prospectus included therein under Rule 424(b) promulgated pursuant to perform, on a timely basis, all of Merger Sub’s obligations under this Agreementthe Securities Act.
Appears in 1 contract
Sources: Merger Agreement (Carescience Inc)
The Offer. (a) Prior The Merger Agreement provides for the making of the Offer. The obligation of Purchaser to the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect accept for payment and pay for Shares tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares is subject to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any satisfaction or waiver 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined and certain other conditions that are described in Annex I);
(ii) decrease the Offer Price;
(iii) change the form Section 15--"Certain Conditions of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements ." Pursuant to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Merger Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall Purchaser may not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond April 24, 2000, except in the earlier following circumstances: (i) if necessary to satisfy any condition of the HSR Act, for a period not to exceed forty (x40) the End Date and business days, (yii) the date that is 30 days after the date that all if any of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the OfferCondition) shall not have been satisfied oror waived for a period not to exceed twenty (20) business days, (iii) if all the Offer Conditions are satisfied or waived, but the number of Shares validly tendered and not withdrawn is less than 90% of the number of then-outstanding Shares on a fully diluted basis (excluding shares held by the Company or any of its subsidiaries), for four successive five (5) business day periods for an aggregate period not to the extent permissibleexceed twenty (20) business days, have been waived by Merger Sub and or (iiiv) no such individual extension if any of the Offer Conditions (other than the Minimum Condition) shall be not have been satisfied or waived and a Takeover Proposal has been made or publicly disclosed by a person other than Parent or Purchaser (including the Company and any of its subsidiaries and affiliates), or if Parent or Purchaser otherwise learn that a Takeover Proposal has been made or publicly proposed, for a period of more than five Business Daysup to ten (10) days after the withdrawal or termination of such Takeover Proposal, such date in no event to exceed the earlier of (x) June 30, 2000, and (y) the minimum time period necessary to satisfy all such outstanding Offer Conditions. Following expiration of Subject to the Offerforegoing restrictions, Merger Sub mayPurchaser has the right (but is not obligated), in its sole discretion, provide to extend the period during which the Offer is open by giving oral or written notices of extension to the Depositary in such offer and by making a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 public announcement of such extension. The Purchaser will not, without the prior consent of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer ConditionsCompany, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay decrease the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to or the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, number of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase sought pursuant to the Offer, and shall cause or change the form of consideration in the offer, or otherwise amend or add any term or condition of or to the Offer, except as otherwise expressly permitted in or contemplated by the Merger Sub Agreement. The Purchaser can waive any other condition to performthe Offer in its discretion. For information concerning directors of the Company prior to consummation of the Merger, on a timely basis, all see Section 12--"Purpose of Merger Sub’s obligations under this Agreementthe Offer; Plans for the Company."
Appears in 1 contract
Sources: Merger Agreement (Autoliv Inc)
The Offer. (a) Prior Subject to the terms and conditions of this Agreement, and provided that (i) this Agreement shall not have been terminated in accordance with Section 10.1 and (ii) the Company shall have timely complied in all material respects with its obligations to provide the required information to Merger Sub under Section 2.1(f) and Section 2.2, as promptly as practicable after the date hereof (but in no event later than fifteen (15) Business Days after the date of this Agreement), Merger Sub shall (iand Parent shall cause Merger Sub to) commenced commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase all of the outstanding Shares (other than Shares to be canceled pursuant to Section 3.2(b) or Section 3.4 (collectively, the “Excluded Shares”)), at a price per Share equal to the Offer Price, in cash, without interest. The Offer shall be subject to the conditions set forth in Annex I hereto (the “Offer Conditions”). The date of such commencement, on which ▇▇▇▇▇▇ Sub commences the Offer is referred to as the “Offer Commencement Date.”
(b) Merger Sub expressly reserves the right to, at any time and to the extent permitted by applicable Law, (x) increase the Offer Price and/or (y) waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer not inconsistent with the terms of this Agreement; provided that, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Merger Sub and Parent shall not:
(i) waive or change the Minimum Condition (as defined in Annex I) or the conditions set forth in clauses B, C and H of Annex I;
(ii) decrease the Offer Price (other than an adjustment made pursuant to Section 3.6);
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Shares (or narrow or otherwise diminish or reduce the classes of Shares) subject to the Offer;
(v) extend or otherwise change the expiration date of the Offer except as otherwise required or expressly permitted herein (provided that, notwithstanding anything herein to the contrary, Merger Sub shall be permitted to extend the Offer at least until the Inside Date);
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects any holder of the Shares (in their capacity as such); or
(vii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act.
(c) The Offer shall expire one minute after 11:59 p.m., Eastern time, on the date that is twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) from the Offer Commencement Date (such time, the “Expiration Time”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.1 (in which event the term “Expiration Time” shall mean the time and date that the Offer, as so extended, may expire).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless (x) this Agreement shall have been terminated in accordance with Section 10.1 or (y) Merger Sub receives the prior written consent of the Company:
(i) Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, the Offer Document or any period otherwise required by the rules and regulations of Nasdaq or applicable Law (including in order to comply with Rule 14e-1(b) promulgated under the Exchange Act in respect of the Offer Price);
(ii) if, at the initial Expiration Time or any subsequent time as of which the Offer is scheduled to expire, any of the Offer Conditions (other than the Minimum Condition and any such conditions that by their nature are to be satisfied at the expiration of the Offer (provided such conditions would be capable of being satisfied or validly waived were the expiration of the Offer to occur at such time)) have not been satisfied or waived (to the extent waivable by Merger Sub or Parent), then Merger Sub shall extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Time or such subsequent Expiration Time for successive extension periods (the length of each such individual extension period not to exceed ten (10) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)); and
(iii) if, at the initial Expiration Time or any subsequent time as of which the Offer is scheduled to expire, each of the Offer Conditions (other than the Minimum Condition, and other than any such conditions that by their nature are to be satisfied at the expiration of the Offer (provided such conditions would be capable of being satisfied or validly waived were the expiration of the Offer to occur at such time)) has been satisfied or waived (to the extent waivable by Merger Sub or Parent) and the Minimum Condition has not been satisfied, then Merger Sub may, and, at the request in writing of the Company, Merger Sub shall, extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Time or such subsequent Expiration Time for successive extension periods (the length of each such individual extension period not to exceed ten (10) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)); provided, however, that in no event shall Merger Sub be required to extend the expiration of the Offer pursuant to this clause (iii) for more than twenty-five (25) Business Days in the aggregate; provided, however, that notwithstanding the foregoing clauses (i), (ii) filed and (iii), in no event shall Merger Sub be required to extend the Offer beyond the earlier of (x) the Outside Date or (y) the termination of this Agreement in accordance with Section 10.1. In no event shall Merger Sub be permitted to terminate the Offer prior to the Expiration Time, unless this Agreement has been previously terminated. In the event this Agreement is terminated pursuant to Section 10.1, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within one (1) Business Day of such termination), irrevocably and unconditionally terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Merger Sub prior to the acceptance for payment and payment for Shares tendered in the Offer, Merger Sub shall promptly return (or cause to be returned), in accordance with applicable Law, all tendered Shares to the registered holders thereof. Notwithstanding anything herein to the contrary, ▇▇▇▇▇▇ and Merger Sub may voluntarily extend the Offer at least until the Inside Date, subject to compliance with the third sentence of this Section 2.1(d).
(e) Upon the terms and subject to the conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, promptly (within the meaning of Rule 14e-1(c) of the Exchange Act) after the expiration of the Offer (as it may be extended in accordance with this Agreement), all Shares validly tendered and not validly withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”).
(f) On the Offer Commencement Date, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including all exhibits thereto, the “Schedule TO”) that included shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (and any other appropriate ancillary documents) (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iiiii) caused cause the appropriate Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) laws or other applicable Law. Parent and ▇▇▇▇▇▇ Sub agree that they shall cause the Offer Documents to comply in all material respects with the Exchange Act and all other applicable Laws. The Offer is subject only Company shall furnish to the conditions set forth in Annex I hereto (the “Offer Conditions”). Parent and Merger Sub expressly reserves the right information relating to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease Company’s Subsidiaries and the Offer Price;
(iii) change Company’s Stockholders required by the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions Exchange Act or other requirements to the Offer;
(vi) otherwise amend, modify applicable Laws or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) requested by Parent or Merger Sub, of each of Sub to be set forth in the Offer Conditions.
(e) Document, and to enable Parent and Merger Sub shall not terminate to comply with their obligations of this Section 2.1(f); provided, however, that no covenant is made by Parent or Merger Sub regarding the inclusion of any information regarding the Company, the Company’s Subsidiaries or the Company’s Stockholders in the Offer prior Document. Parent will furnish to any scheduled expiration date without the prior written consent of the Company except the information relating to Parent or Merger Sub required by the Exchange Act or other applicable Laws or reasonably requested by Parent or Merger Sub to be set forth in the event that this Agreement is terminated in accordance Solicitation/Recommendation Statement on Schedule 14D-9 (together with its terms.
(f) any amendments or supplements thereto, the “Schedule 14D-9”). Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by applicable Law, or to correct any material omissions therefrom; provided, however, that no covenant is made by Parent, or Merger Sub with respect to the information supplied by or on behalf of the Company for inclusion or incorporation by reference in the Offer Document. Parent and Merger Sub have used, and shall use, use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the appropriate Offer Documents as so corrected to be disseminated to holders of Shares, in each case case, to the extent required by applicable federal securities lawslaws or the rules or regulations of Nasdaq, in each case, as soon as reasonably practicable. The Except after a Company Board Recommendation Change or in response to any disclosures made by the Company in compliance with Section 7.3, the Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counselcounsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Each of Parent and Merger Sub shall (A) respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer and (B) except after a Company Board Recommendation Change or in response to any disclosures made by the Company in compliance with Section 7.3, provide the Company and its counsel with (ix) any written comments or other written communications (and a summary of all substantive oral comments or communications, whether written or oral, ) that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (iiy) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments to Parent and Merger Sub on that response as soon as reasonably practicable (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to . Parent, Merger Sub and the Company will each comply in all material respects with applicable Law and the rules and regulations of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to Nasdaq in connection with the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior The obligations of Sub to accept for payment and to pay for any shares of Common Stock validly tendered and not withdrawn prior to the date expiration of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth Tender Offer Conditions, any of which may be waived by Parent or Sub; provided, however, that neither Parent or Sub shall waive the Minimum Condition (as defined in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, A) without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional . The Tender Offer Conditions or other requirements are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Conditions and, subject to the Offer;
(vi) otherwise amendimmediately preceding sentence, may be waived by Parent and Sub in whole or in part. Parent and Sub expressly reserve the right to modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affectsOffer, or could reasonably be expected including without limitation to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreementbeyond any scheduled expiration date; provided, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoinghowever, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) add to the Tender Offer Conditions or otherwise modify the Tender Offer Conditions in a manner that is adverse to the holders of Common Stock or (iv) change the form of consideration payable in the Offer. Parent and Sub covenant and agree that, subject to the terms and conditions of this Agreement, including, but not limited to, the Tender Offer Conditions, unless the Company otherwise consents in writing, Sub will accept for payment and pay for the Common Stock in accordance with Rule 14e-1(c) of the Exchange Act; provided, however, that unless (i) any Person has made an Acquisition Proposal (as hereinafter defined), or (ii) any of the conditions of the Offer set forth in Annex A hereto shall not have been satisfied, the expiration date may not be extended beyond the 10th business day after the initial expiration date of the Offer without the Company's prior written consent, such consent not to be unreasonably withheld (it being expressly understood and agreed that, if all of the conditions set forth in Annex A hereto shall have been satisfied and no Person has made an Acquisition Proposal, Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub mayright, in its sole discretion, provide a subsequent offering period to extend the expiration date (“Subsequent Offering Period”through one or more extensions) in accordance with Rule 14d-11 of through the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) 10th business day after the initial expiration of the Offer (regardless of Subsequent Offering Periodsdate), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to Provided that none of the date events set forth in Exhibit A hereto shall have occurred and be continuing, as promptly as practicable (but in any event not later than five business days after the public announcement of the execution and delivery of this Agreement), Merger Sub shall commence (iwithin the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), an offer to purchase (the "Offer") commenced 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, consummate the Offer, accept for payment and to pay for shares of Company Common Stock validly tendered in the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect and not withdrawn shall be subject only to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawsthose conditions set forth in Exhibit A hereto.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Parent and Sub expressly reserves reserve the right to waive any of the Offer Conditions and to make any change in amend or modify the terms of or conditions to the Offer; provided , except that, without the prior written consent of the Company, Merger Sub shall not:not (and Parent shall not cause Sub to)
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change Consideration or the form of consideration to be paid in the Offer;
(iv) therefor or decrease the number of Company Shares sought in pursuant to the 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 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) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer (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 a the event that any condition to the Offer is not satisfied), or (vi) amend any term of the Offer in any manner materially adverse to holders of shares of Company Common Stock; provided, however, that, except as set forth above, Sub may waive any other than as contemplated by this Agreement.
(c) Unless 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, Sub shall accept for payment, and pay for, in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any all shares of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares Common Stock validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in as soon as practicable after the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its termsthereof.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Seven Up Rc Bottling Company of Southern California Inc)
The Offer. (a) Prior The Merger Agreement provides that the Purchaser will commence the Offer as promptly as practicable after the execution of the Merger Agreement, and that, subject to the date satisfaction of this Agreementthe Minimum Condition and the other conditions that are described in Section 14 — “Conditions of the Offer,” the Purchaser will accept for payment and pay for all Shares validly tendered and not properly withdrawn in the Offer as promptly as practicable after the Purchaser is legally permitted to do so. IDEX and the Purchaser expressly reserved the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer, Merger Sub except that without Microfluidics’ prior written approval the Purchaser is not permitted to (i) commenced decrease the Offer (the date of such commencement, the “Offer Commencement Date”)Price, (ii) filed with change the SEC a Tender Offer Statement on Schedule TO with respect form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) impose conditions to the Offer in addition to those described in Section 14 — “Conditions of the Offer,” (together v) amend or waive the Minimum Condition, (vi) amend any of the other conditions and requirements to the Offer described in Section 14 — “Conditions of the Offer” in a manner materially adverse to Microfluidics’ stockholders or (vii) extend the Expiration Date in a manner other than in accordance with all amendments the Merger Agreement; provided, however, that if the aggregate amount of Microfluidics’ Expenses related to the transactions contemplated by the Merger Agreement and supplements thereto and including exhibits theretothe other payments described in the Merger Agreement exceeds or is expected to exceed $2,750,000, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, Purchaser may decrease the Offer to Purchase and a form Price in accordance with the terms of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused Merger Agreement. The Merger Agreement provides that the Offer Documents to be disseminated to holders of Company Shares Purchaser will extend the Offer: • to the extent required by applicable federal securities laws.
(b) The Offer is subject only laws or applicable rules, regulations, interpretations or positions of the SEC; • for one or more periods of up to 20 business days each until March 18, 2011, if at the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive Expiration Date 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) Condition, have not been satisfied or, to the extent permissible, have been or waived by Merger Sub IDEX and (ii) no such individual extension of the Offer shall be Purchaser; • at Microfluidics’ request for a period of more than five Business Daysup to 10 business days, so long as no Acquisition Proposal has been publicly disclosed or communicated to Microfluidics; and • at Microfluidics’ request for a period of three business days, if by the Expiration Date, Microfluidics failed to perform or comply with any agreement or covenant contained in the Merger Agreement and did not have at least three business days notice to correct such failure, so long as no Acquisition Proposal has been publicly disclosed or communicated to Microfluidics. Following expiration After acceptance for payment of Shares in the Offer, Merger Sub mayif IDEX, the Purchaser and their subsidiaries and affiliates do not hold, in its sole discretionthe aggregate, at least 90% of the issued and outstanding Shares so as to permit the Purchaser to complete the Short-Form Merger, then the Purchaser may provide a subsequent offering period (“Subsequent Offering Period”Period (and one or more extensions thereof) in accordance with Rule 14d-11 of under the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent Purchaser is required to cause Merger Sub) to immediately accept for payment, and promptly pay the Offer Price for, each Company Share all Shares validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectSubsequent Offering Period. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.34
Appears in 1 contract
The Offer. (a) Prior to Provided this Agreement shall not have been terminated, as promptly as practicable after the date hereof, but in no event later than five business days following the public announcement of the terms of this Agreement, Parent shall cause Merger Sub Subsidiary to commence, and Merger Subsidiary shall commence, an offer (ias amended or supplemented in accordance with this Agreement, the "OFFER") commenced to purchase for cash any and all of the Offer outstanding Shares at a price of $10.25 per Share (the date of such commencement, the “Offer Commencement Date”"OFFER PRICE"), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect subject to adjustment as set forth in Section 3.06 and Section 3.09, net to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) seller in cash. The Offer is shall be subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”)hereto. Merger Sub Subsidiary expressly reserves the right to waive any the condition to the Offer relating to the representations and warranties and covenants of the Offer Conditions and to make any Company, provided that no other change in the terms of or conditions to the Offer; provided that, Offer may be made without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub Subsidiary shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions conditions are satisfied or waived (if permitted hereunder) and or (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirementlaw, provided that, each such extension shall be for such period (not to exceed 20 business days without the consent of Parent) as may be specified by the Company. If any all of the conditions to the Offer Conditions is not are satisfied or waived on any scheduled expiration date of the Offer, the Company shall have the right to require Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required Subsidiary to extend the Offer on one or more occasions for an aggregate period of not more than 20 business days beyond the earlier of (x) the End Date and (y) the latest expiration date that is 30 days after the date that all of the Offer Conditions would otherwise be permitted under clause (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offeri) have been satisfied or, to the extent permissible, have been waived by Merger Sub and or (ii) no such individual extension of the Offer shall be for a period previous sentence, if, on such expiration date, the number of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period Shares tendered (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (iiwithdrawn) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.,
Appears in 1 contract
The Offer. (a) Prior to the date of this Agreement, Merger Sub (i) commenced The Company will procure that the Offer (is made on the date of such commencement, terms and conditions set out in the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawsPress Release.
(b) The Offer is subject only Company will keep the Administrative Agent informed as to the conditions set forth status of, and progress with respect to, the Offer and updated financial information on Target and each Target Subsidiary (as available) and, in Annex I hereto particular, will promptly give to the Administrative Agent such information (including details as to the current level of acceptances) concerning the Offer or otherwise relevant to the Offer as the Administrative Agent may reasonably request and shall promptly upon receipt deliver to the Administrative Agent a copy of every certificate delivered to Bidco in connection with the Offer by the receiving agent pursuant to the City Code.
(c) Without the prior approval of the Administrative Agent (the “Offer Conditions”Administrative Agent's response not to be unreasonably delayed). Merger Sub expressly reserves , the right to waive any of the Offer Conditions Company will not, and to make any change in the terms of or conditions to the Offer; provided that, without the prior written consent of the Company, Merger Sub shall will procure that Bidco will not:
(i) waive waive, in whole or change in part, either of the Minimum Condition conditions specified in 1(B) and (as defined in Annex I);C) of Appendix 1 to the Press Release relating to the UK Fair Trading Act 1973 and the US ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Anti-Trust Improvements Act of 1976; or
(ii) decrease make any increase in the Offer Price;per share offer purchase price or any change in the form of consideration of the offer purchase price (each as delineated in the Press Release) or take or permit to be taken any step as a result of which such an increase or change is or may be required; and
(iii) change the form of consideration take or permit to be paid in taken any step which would require the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms its Subsidiaries (including Bidco) to make a mandatory offer for Target within Rule 9 of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange ActCode.
(d) Subject to The Company will notify the terms and conditions set forth in this Agreement and to the satisfaction Administrative Agent immediately upon becoming aware of any circumstance or waiver (if permitted hereunder) event which is or could reasonably be construed as being covered by a condition of the Offer Conditionswhich, Merger Sub shallif not waived, and Parent shall cause it towould entitle it, consummate with the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration consent of the Offer (regardless of Subsequent Offering Periods)<371> Panel on Take-overs and Mergers in the United Kingdom if needed, all Company Shares validly tendered and not withdrawn pursuant to lapse the Offer and (ii) all Company Shares validly tendered will consult with the Administrative Agent in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” relation to such event or circumstances and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditionsits intended actions.
(e) Merger Sub shall not terminate The Company will consult with the Administrative Agent before declaring the Offer prior unconditional as to any scheduled expiration date without acceptances in circumstances where it has not acquired or agreed to acquire pursuant to the prior written consent Offer at least 90% in nominal value of the Company except in Target Shares to which the event that this Agreement is terminated in accordance with its termsOffer relates (within the meaning of Section 428-430F of the Companies Act).
(f) Each of ParentThe Company will not, Merger Sub and the Company agrees promptly will not permit Bidco to, exercise its rights to correct any information provided by it for use in the Schedule TO and declare the Offer Documents if and unconditional as to acceptances unless it has acquired or agreed to acquire pursuant to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause Offer not less than 75% of the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given Target Shares on a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECfully diluted basis.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any The Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offershall, and shall cause Merger Sub US Holdco #1, US Holdco #2 and Bidco to, comply in all material respects with the provisions of the City Code, the Financial Services ▇▇▇ ▇▇▇▇ and the Companies Act and all other applicable statutes, laws and regulations relevant in the context of the Offer.
(h) The Company shall cause Bidco to performgive notice under Section 429 of the Companies Act to relevant Target shareholders promptly upon becoming entitled to do so under the Companies Act.
(i) The Company shall ensure that on the Initial Funding Date the Administrative Agent is provided with copies of such constitutional documents of the Target and each Target Subsidiary as it deems to be material.
(j) The Company will (and will cause Bidco to) consult with the Administrative Agent with respect to any condition which is attached to:
(i) any indication by the Office of Fair Trading that it is not the intention of the Secretary of State for Trade and Industry to refer the proposed acquisition of Target by Bidco to the Monopolies and Mergers Commission; or
(ii) the expiry, lapsing or termination of any appropriate waiting period (including any extension thereof) under the United States ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and the regulations thereunder; and will not in any event treat or deem the conditions to the Offer specified in Sections 1(b) or (c) (as the case may be) of Appendix 1 to the Press Release as satisfied or waived if it would, in the reasonable opinion of the Administrative Agent, have a material adverse effect on a timely basisthe business, all assets, financial conditions or prospects of Merger Sub’s obligations under this Agreementthe Company, Bidco or the Target.
Appears in 1 contract
Sources: Credit Agreement (Macdermid Inc)
The Offer. (a) Prior Subject to the provisions of this Agreement, as promptly as practicable, and in any event no more than ten Business Days, after the date of this Agreement, Merger Sub (i) commenced Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence, within the Offer (meaning of Rule l4d-2 under the date Securities Exchange Act of such commencement1934, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer as amended (together with all amendments the rules and supplements thereto and including exhibits theretoregulations thereunder (the “Exchange Act”)), the “Schedule TO”) that included the summary term sheet required thereby andOffer. The obligation of Merger Subsidiary to, as exhibitsand of Parent to cause Merger Subsidiary to, the Offer to Purchase accept for payment and a form of letter of transmittal and summary advertisement (collectively, together with pay for any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to Shares tendered shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the satisfaction of the conditions set forth in Annex I hereto (A and to the “Offer Conditions”)terms and conditions of this Agreement. Parent and Merger Sub Subsidiary expressly reserves reserve the right to waive any of the conditions to the Offer Conditions to the extent legally permissible (other than the Minimum Condition (as defined in Annex A), which may not be waived without the prior written consent of the Company), to increase the price per Share payable in the Offer and to make any change other changes in the terms and conditions of or conditions to the Offer; provided Offer except that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or no change the Minimum Condition (as defined in Annex I);
(ii) decrease may be made to the Offer Price;
(iii) change the that would alter form of consideration to be paid paid, no decrease in the Offer;
(iv) decrease Offer Price or the number of Company Shares sought in the Offer;
(v) impose Offer may be made, no change which imposes additional Offer Conditions or other requirements conditions to the Offer;
(vi) otherwise amend, modify Offer or supplement modifies any of the Offer Conditions or terms of the Offer conditions set forth in a Annex A in any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; orShares may be made and neither Parent nor Merger Subsidiary may extend the Offer, except in accordance with Section 1.01(c).
(viib) extend or otherwise change On the expiration date of commencement of the Offer, Parent and Merger Subsidiary shall file with the Securities and Exchange Commission (“SEC”) a Tender Offer Statement on Schedule TO (as amended and supplemented from time to time, the “Schedule TO”), which shall comply in all material respects with the provisions of applicable federal securities laws, and shall contain (including as an exhibit) or incorporate by reference the offer to purchase relating to the Offer and forms of the related letter of transmittal and other appropriate documents (which documents, as amended or supplemented from time to time, are referred to herein collectively as the “Offer Documents”). The Parent and the Merger Subsidiary further agree to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply in a manner all material respects with the provisions of the Exchange Act and any other than as applicable laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be reasonably required or requested in connection with any action contemplated by this AgreementSection 1.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC. Parent and Merger Subsidiary agree to provide the Company, and to consult with the Company and its counsel regarding, any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptly after receipt thereof and any responses thereto. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent and Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each case, as and to the extent required by law.
(c) Unless extended pursuant Subject to and in accordance with the terms of this Agreementand conditions hereof, the Offer shall expire at midnight (remain open until midnight, New York City time) , on the twentieth date that is 20 Business Day Days after the date the Offer Commencement Date. Notwithstanding the foregoingis commenced; provided, however, that without the consent of the Company, Parent and Merger Sub Subsidiary shall have the right to extend the Offer (i) from time to time if, at the any scheduled or extended expiration date of the Offer, any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) set forth in Annex A shall not have been satisfied or earlier waived, until such Offer Conditions conditions are satisfied or waived earlier waived; provided that if only the condition set forth in clause (if permitted hereundery) of the first sentence of Annex A hereto is not satisfied or earlier waived, Parent and Merger Subsidiary shall extend the Offer at the request of the Company (but in no event shall Parent and Merger Subsidiary be obligated to extend expiration of the Offer pursuant to this clause (i) beyond September 30, 2004); and provided further that Parent and Merger Subsidiary shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of fifteen Business Days if, as of any expiration date, all of the conditions set forth in clause (z) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any law, (iii) on one or more occasions (all such occasions aggregating not more than ten Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, all of the Offer Conditions is not conditions to Merger Subsidiary’s obligations to accept for payment Shares are satisfied or waived on any scheduled expiration date earlier waived, but the number of Shares validly tendered (and not withdrawn) pursuant to the Offer, Merger Sub shall extend the Offer, if, in the determination of together with Shares then owned by Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfiedrepresents less than 90% of the outstanding Shares on a fully diluted basis; provided, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided thathowever, in each case, (i) Merger Sub shall not be required that Parent’s decision to extend the Offer beyond in the earlier case of this clause (xiii) shall constitute a waiver of the End Date conditions set forth in clauses (d) and (yf) the date that is 30 days after the date that all (excluding any willful or intentional breach of any material obligation of the Offer Conditions Company) on Annex A and of its right to terminate the Agreement under Sections 7.01(b), (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offerd), (k) have been satisfied or, to the extent permissible, have been waived by Merger Sub or (l) and (iiiv) no such individual extension of the Offer shall be for a period of one or more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period periods of up to an additional 20 Business Days in the aggregate (collectively, the “Subsequent Offering Period”) in accordance with pursuant to Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Parent and Merger Subsidiary shall also have the right to extend the Offer in accordance with Section 7.01(f).
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditionsand this Agreement, Merger Sub Subsidiary shall, and Parent shall cause it Merger Subsidiary to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company for Shares validly tendered and not withdrawn pursuant to the Offer and as soon as practicable after the expiration thereof (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading but in any material respectevent within three Business Days); provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of Subsidiary on a timely basis the funds necessary to purchase any Company Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Prima Energy Corp)
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Section 11.01, as promptly as practicable after the date of this Agreement, Merger Sub but in any event no later than 10 Business Days (iunless otherwise agreed by Parent and the Company) commenced the Offer (after the date of such commencementthis Agreement (subject to the Company having timely provided any information required to be provided by it pursuant to Section 2.01(g) and Section 2.02(a)), Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. The date on which Merger Sub commences (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer is hereinafter referred to as the “Offer Commencement Date.”
(b) The Offer shall be made by means of an offer to purchase containing the terms set forth in this Agreement and the Offer Conditions (the “Offer to Purchase”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to the Minimum Condition, the Termination Condition and the other conditions set forth in Annex I (all of the offer conditions set forth in Annex I, collectively, the “Offer Conditions”). Merger Sub expressly reserves the right (in its sole discretion) at any time and from time to time to waive, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not: (i) waive or change the Minimum Condition or the Termination Condition or impose conditions to the Offer other than the Offer Conditions; (ii) decrease the Offer Price; (iii) change the form of consideration to be paid in the Offer; (iv) decrease the maximum number of Shares sought to be purchased in the Offer; (v) extend or otherwise change the Expiration Time other than as required or permitted by this Agreement; or (vi) otherwise amend, modify or supplement any of the Offer Conditions or other terms of the Offer in a manner materially adverse to the holders of the Shares. The Offer may not be terminated or withdrawn prior to the Expiration Time unless this Agreement is terminated in accordance with Section 11.01.
(c) The Offer initially shall be scheduled to expire at one minute after 11:59 p.m. (New York City time) on the date that is 20 business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the ▇▇▇▇ ▇▇▇) from the Offer Commencement Date (unless otherwise agreed to in writing by Parent and the Company) (the “Initial Expiration Time”, and such time or such subsequent time to which the Initial Expiration Time of the Offer is extended in accordance with the terms of this Agreement, the “Expiration Time”).
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 11.01:
(i) if, as of the then-scheduled Expiration Time, any Offer Condition (other than the Minimum Condition) has not been satisfied or, to the extent waivable by Merger Sub or Parent, waived by Merger Sub or Parent, Merger Sub may in its sole discretion (and, if requested by the Company, shall, and Parent shall cause Merger Sub to) extend the Offer on one or more occasions for an additional period of up to ten (10) business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the ▇▇▇▇ ▇▇▇) (or such longer period as Parent and the Company may agree) per extension, to permit such Offer Condition to be satisfied;
(ii) Merger Sub shall extend the Offer from time to time for any period required by any applicable Law, any interpretation or position of the SEC or the staff thereof, or the rules and regulations of Nasdaq applicable to the Offer; and
(iii) if, as of the then-scheduled Expiration Time, all of the Offer Conditions have been satisfied or, to the extent waivable by Merger Sub or Parent, waived by Merger Sub or Parent, except that the Minimum Condition has not been satisfied, Merger Sub may (and, if requested by the Company, shall, and Parent shall cause Merger Sub to) extend the Offer on one or more occasions for an additional period of up to ten (10) business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the ▇▇▇▇ ▇▇▇) (or such longer period as Parent and the Company may agree) per extension; provided that Merger Sub shall not be required to extend the Offer pursuant to this clause (iii) beyond the earlier of (A) one minute after 11:59 p.m. (New York City time) on the date that is 20 business days (calculated in accordance with Rule 14d-1(g)(3) and Rule 14e-1(a) under the ▇▇▇▇ ▇▇▇) after the first date on which all of the Offer Conditions (other than the Minimum Condition) have been satisfied and (B) the End Date; provided that, notwithstanding the foregoing clauses (i), (ii) filed and (iii), in no event shall Merger Sub be permitted without the prior written consent of the Company or required to extend the Offer beyond the earlier to occur of (x) the termination of this Agreement in accordance with Section 11.01 and (y) the End Date.
(e) If this Agreement is terminated in accordance with Section 11.01, Merger Sub shall terminate the Offer and shall not acquire any Shares pursuant to the Offer. If the Offer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, Merger Sub shall promptly return (and cause any depository acting on behalf of Merger Sub to return) in accordance with applicable Law all tendered Shares to the registered holders thereof.
(f) On the terms and subject to the conditions set forth in this Agreement and to the satisfaction, or (to the extent waivable by Parent or Merger Sub) waiver by Parent or Merger Sub, of the Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) (i) promptly after the Expiration Time, irrevocably accept for payment all Shares tendered (and not validly withdrawn) pursuant to the Offer (the time of such acceptance, the “Acceptance Time”) and (ii) promptly after the Acceptance Time, pay for such Shares. The Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the respective seller in cash, without interest, on the terms and subject to the conditions set forth in this Agreement. Without limiting the generality of Section 8.01, Parent shall cause to be provided to Merger Sub, or otherwise cause to be delivered, all of the funds necessary to purchase any and all Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(g) On the Offer Commencement Date, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TOOffer Documents”) that included the summary term sheet required thereby and, as exhibits, shall contain or incorporate by reference the Offer to Purchase and a related form of letter of transmittal and summary advertisement (collectively, ii) cause the Offer to Purchase and other appropriate Offer Documents to be disseminated to holders of Shares to the extent required by the 1934 Act. The Company will promptly furnish to Parent and Merger Sub the information relating to the Company required by the 1934 Act to be set forth in the Offer Documents. Parent will promptly furnish to the Company the information relating to Parent or Merger Sub required by the 1934 Act to be set forth in the Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer ConditionsSchedule 14D-9”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Sub have used, and shall use, their reasonable best efforts take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be promptly filed with the SEC and the appropriate Offer Documents as so corrected to be promptly disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel1934 Act. Parent and Merger Sub shall provide the Company and its counsel with (i) any written comments or other written communications (and a summary of all substantive oral comments or communications, whether written or oral, ) that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those such comments or other communications communications. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and (ii) Merger Sub shall provide the Company and its counsel a reasonable opportunity to participate in the response of review and comment on such Offer Documents or response, and Parent and Merger Sub to those comments and to provide comments on that response (to which Subsidiary shall give reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in to any discussions or meetings with the SECsuch comments.
(gh) At or prior to the Acceptance Time, Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offerduly authorize, execute and deliver, and shall cause Merger Sub to performensure that the Rights Agent duly authorizes, on a timely basisexecutes and delivers, all of Merger Sub’s obligations under this the CVR Agreement.
Appears in 1 contract
Sources: Merger Agreement (Zogenix, Inc.)
The Offer. (ab) Prior to On the date of this Agreementcommencement of the Offer, Parent and Merger Sub shall (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) file or cause to be filed with the SEC a combined Schedule 13E-3 and Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the and related Offer to Purchase and a Purchase, form of letter of transmittal and summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, together with and including any supplements or amendments or supplements thereto, the “Offer Documents”) and (iiiii) caused cause the Offer Documents to be disseminated to the holders of Company Shares as and to the extent required by applicable federal securities laws.
(b) Law. The Offer is subject only Company shall promptly furnish to the conditions set forth in Annex I hereto (the “Offer Conditions”). Parent and Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of writing all information concerning the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to that may be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied securities Laws or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) requested by Parent or Merger SubSub for inclusion in the Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of all material disclosure relating to (i) the company financial advisor A▇▇▇▇ & Company LLC (including the amount of fees and other consideration that A▇▇▇▇ & Company LLC will receive upon consummation of or as a result of the Offer and the Merger, and the conditions therefor), (ii) the financial advisor N▇▇▇▇▇▇ & Company (including the amount of fees and other consideration that N▇▇▇▇▇▇ & Company shall receive in connection with the opinion referred to in Section 4.20), (iii) the opinions of each of A▇▇▇▇ & Company LLC and N▇▇▇▇▇▇ & Company referred to in Section 4.20 and (iv) the Offer Conditions.
(e) Merger Sub shall not terminate information that formed the Offer prior basis for rendering each of such opinions, subject to any scheduled expiration date without the prior written consent approval of the form of such disclosure by A▇▇▇▇ & Company except in the event that this Agreement is terminated in accordance with its terms.
(f) LLC and N▇▇▇▇▇▇ & Company, respectively, such approval not to be unreasonably withheld or delayed. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and or the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Sub have used, and shall use, use their reasonable best efforts to cause the Schedule TO as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case case, as soon as reasonably practicable and as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any written comments or other communications, whether written and shall inform them of any oral comments or oralother communications, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(gc) paragraph shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause or Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under terminate this AgreementAgreement pursuant to Article VIII.
Appears in 1 contract
The Offer. (a) Prior to Provided that (i) this Agreement shall not have been terminated in accordance with Section 11.01 and (ii) the Company is not then in material breach of Section 2.01(f), as promptly as practicable after the date of this Agreementhereof (but in no event later than November 29, 2021), Merger Sub shall (iand Parent shall cause Merger Sub to) commenced commence (within the Offer (meaning of Rule 14d-2 under the date of such commencement, 1▇▇▇ ▇▇▇) the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) Offer. The Offer is shall be subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). The date on which Merger Sub commences the Offer is referred to as the “Offer Commencement Date.”
(b) Merger Sub expressly reserves the right to waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, Merger Sub shall waive the condition set forth in clause (H) of Annex I if, but only if, directed by the Company at any time and from time to time; provided, further, that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I)) or the condition set forth in clause (H) of Annex I;
(ii) decrease the Offer PricePrice other than in the manner required by Section 3.07;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought to be purchased in the Offer;
(v) extend or otherwise change the Expiration Time except as otherwise provided herein; or
(vi) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or other terms of the Offer in a any manner that adversely affects, broadens such conditions or could reasonably be expected is otherwise adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the The Offer shall expire at midnight immediately after 11:59 p.m. (New York City time) on the twentieth Business Day date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the 1▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding Date (such time, the foregoing“Expiration Time”), without unless the consent period of time for which the Company, Merger Sub Offer is open shall have been extended pursuant to, and in accordance with, the right to extend provisions of this Section 2.01 (in which event the Offer (i) from term “Expiration Time” shall mean the earliest time to time if, at the scheduled or extended expiration and date of that the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesextended, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenexpire), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to Not later than the first business day after the date of this Agreement, Merger Sub (i) commenced ACQUIROR, Acquisition Subsidiary and OPTA will make a public announcement of the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawsOffer.
(b) Provided that this Agreement shall not have been terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto shall have occurred or be existing, Acquisition Subsidiary shall commence, and ACQUIROR shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as practicable after the date hereof, but in no event later than five (5) business days after the initial public announcement of Acquisition Subsidiary’s intention to commence the Offer. The obligation of Acquisition Subsidiary to accept for payment and pay for OPTA Shares tendered pursuant to the Offer is shall be subject only to the satisfaction of the conditions set forth in Annex I A hereto (unless the failure of any such condition was caused by any breach by ACQUIROR or Acquisition Subsidiary of this Agreement in which case Acquisition Subsidiary shall be obligated to accept for payment and pay for OPTA Shares tendered pursuant to the Offer provided that such failure has been waived by OPTA), including the condition that a number of OPTA Shares representing that number of OPTA Shares which would equal more than fifty percent (50%) of the OPTA Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the “Offer ConditionsMinimum Condition”). Merger Sub Acquisition Subsidiary expressly reserves the right to waive any of such condition, to increase the Offer Conditions Per Share Amount and to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that, without the prior written consent of the CompanyOPTA, Merger Sub shall not:
Acquisition Subsidiary will not (i) waive or change decrease the Minimum Condition (as defined in Annex I);
Per Share Amount, (ii) decrease reduce the Offer Price;
maximum number of OPTA Shares to be purchased in the Offer, (iii) change the form of the consideration to be paid payable in the Offer;
, (iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amendadd to, modify or supplement any of the conditions to the Offer Conditions or terms of the Offer set forth in a manner that adversely affectsAnnex A hereto, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(viiv) extend or otherwise change the expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) make any other change in a manner other than the terms or conditions of the Offer which is adverse to the holders of OPTA Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Acquisition Subsidiary shall, and ACQUIROR shall cause Acquisition Subsidiary to, accept for payment and pay, as contemplated by this Agreementpromptly as practicable after expiration of the Offer, for all OPTA Shares validly tendered and not withdrawn.
(c) Unless extended pursuant to On the date of commencement of the Offer, ACQUIROR and in accordance Acquisition Subsidiary shall file with the terms Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and Table of Contents supplements thereto, the “Schedule TO”), with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and the forms of related letters of transmittal (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to OPTA’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. ACQUIROR and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading, and ACQUIROR and Acquisition Subsidiary shall take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of OPTA Shares, in each case as and to the extent required by applicable law. OPTA and its counsel shall be given the reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. ACQUIROR and Acquisition Subsidiary shall provide OPTA and its counsel with a copy of any written comments or telephonic notification of any oral comments ACQUIROR or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. ACQUIROR and its counsel shall provide OPTA and its counsel with a reasonable opportunity to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Offer Documents or this Agreement. In the event that ACQUIROR or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond promptly to such comments and take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms and conditions hereof, the Offer shall expire at midnight (New York City time) remain open until midnight, Eastern Time, on the twentieth Business Day date that is twenty (20) business days after the Offer Commencement Date. Notwithstanding is commenced (within the foregoingmeaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of the CompanyOPTA, Merger Sub shall have the right to extend the Offer Acquisition Subsidiary may (i) from time to time ifextend the Offer, if at the scheduled or extended expiration date of the Offer, Offer any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) set forth in Annex A shall not have been satisfied or waived, for one (1) or more periods (none of which shall exceed ten (10) business days) not to exceed thirty (30) business days in the aggregate or, if earlier, until such Offer Conditions time as such conditions are satisfied or waived (if permitted hereunder) and waived, (ii) extend the Offer for any period one (1) or more periods, not to exceed thirty (30) business days in the aggregate, if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, or (iii) extend the Offer on one (1) occasion for an aggregate period of not more than ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or any period otherwise required by applicable Legal Requirement. (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of OPTA Shares which would equal more than ninety percent (90%) of the issued and outstanding OPTA Shares; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a) or (d) in Annex A. If any on the initial scheduled expiration date of the Offer Conditions is or Table of Contents any extension thereof, any applicable waiting period under any applicable foreign laws regulating competition, antitrust, investment or exchange controls has not satisfied expired or waived terminated prior to the expiration of the Offer (the “Foreign Antitrust Condition”), Acquisition Subsidiary shall, if requested to do so by OPTA, extend the expiration date of the Offer until a date not later than January 15, 2003 and ACQUIROR shall use its best efforts to obtain all permits, authorizations, consents, expiration or termination of waiting periods, and approvals as may be required by any Governmental Entity. In addition, ACQUIROR and Acquisition Subsidiary each agree that if all of the conditions set forth in Annex A are not satisfied, including the satisfaction of the Minimum Condition, on any scheduled expiration date of the Offer, Merger Sub then Acquisition Subsidiary shall, and ACQUIROR shall extend the Offercause Acquisition Subsidiary to, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier for one (1) or more periods of not less than ten (x10) the End Date and (y) the date business days if requested to do so by OPTA, provided that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer OPTA shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period entitled to make only three (“Subsequent Offering Period”3) in accordance with Rule 14d-11 of the Exchange Actsuch requests.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to Provided that none of the events set forth in the Annex A hereto shall have occurred and be continuing, as promptly as practicable (but in no event later than five business days after the date of the public announcement (on the date hereof or on the following day) by Parent and the Company of this Agreement), Parent shall cause Merger Sub to commence (iwithin the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange -------- Act")), an offer to purchase (the "Offer") commenced all outstanding shares of the Company --- ----- Common Stock at a price of $7.127 per share, net to the seller in cash (the "Offer Consideration"). The obligations of Parent and Merger Sub to commence ------------------- the Offer, consummate the Offer, accept for payment and pay for shares of Company Common Stock validly tendered in the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement and not withdrawn shall be subject to those conditions set forth on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.Annex A hereto. -------
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Parent and Merger Sub expressly reserves reserve the right to waive any of the Offer Conditions and to make any change in amend or modify the terms of or conditions to the Offer; provided , except that, without the prior written consent of the Company, Merger Sub shall not:not (and Parent shall cause Merger Sub not to)
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) Consideration or change the form of consideration to be paid in the Offer;
(iv) therefor or decrease the number of Company Shares sought in pursuant to the Offer;
, (ii) change the conditions to the Offer set forth in Annex A hereto, (iii) impose conditions to ------- the Offer in addition to those set forth in Annex A, (iv) waive the condition ------- that there shall be validly tendered and not withdrawn prior to the time the Offer expires a number of shares of Company Common Stock which constitutes a majority of the Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" means, 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 obligations outstanding at that date under employee stock option or similar benefit plans, warrants or otherwise) (the "Minimum Condition"), (v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than (except as contemplated by this Agreement.
set ----------------- forth below ), or (cvi) Unless extended pursuant to and in accordance with the terms amend any term of this Agreement, the Offer shall expire at midnight in any manner adverse to holders of shares of Company Common Stock; provided, however, that: (New York City timeA) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Companyexcept -------- ------- as set forth above, Merger Sub shall have the right may waive any condition to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any in whole or in part, in its sole discretion; (B) 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, regulations, interpretations or positions of the Offer Conditions United States Securities and Exchange Commission (other than conditions which by their nature are to be satisfied at the Acceptance Time"SEC") shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable --- thereof; (C) if all of the conditions to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is set forth on Annex A are not satisfied or waived on any scheduled Offer expiration date of the Offerdate, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that if all of the Offer Conditions (other than the Minimum Condition and those that by their nature such conditions are to be then still reasonably capable of being satisfied at the expiration of the Offer) have been satisfied or, prior to the extent permissible, have been waived by Merger Sub and Termination Date (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offeras defined in Section 9.5(g)), Merger Sub may, in its sole discretion, provide a subsequent offering period extend the Offer from time to time (“Subsequent Offering Period”each such individual extension not to exceed ten (10) business days after the previously scheduled expiration date) until such conditions are satisfied or waived, but in no event later than the termination of this Agreement in accordance with Rule 14d-11 its terms; and (D) the Offer may be extended for one or more periods not to exceed twenty (20) business days in the aggregate, if on such expiration date the conditions of the Exchange Act.
Offer described on Annex A hereto shall have been satisfied or ------- earlier waived, but the number of shares of Company Common Stock that have been validly tendered and not withdrawn represents less than ninety percent (d90%) Subject of the then issued and outstanding shares of Company Common Stock on a fully diluted basis. Notwithstanding the foregoing, Merger Sub may not, without the Company's prior written consent, extend the Offer pursuant to clause (C) of the prior sentence if the failure to satisfy any of the conditions to the terms and conditions Offer set forth in on Annex A attached hereto was directly or indirectly caused by an act or ------- omission of Parent or Merger Sub that constitutes a material breach of this Agreement and to Agreement. Assuming the prior satisfaction or waiver (if permitted hereunder) of the conditions to the Offer Conditionsset forth on Annex A hereto, Merger Sub shall, and Parent shall cause it ------- Merger Sub to, consummate the Offer in accordance with its terms and accept for payment payment, and pay for, as promptly as practicable (i) after in accordance with the expiration terms of the Offer (regardless of Subsequent Offering Periods)Offer, all shares of Company Shares Common Stock validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment as soon as it is permitted to do so under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”)applicable law. The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each initial expiration date of the Offer Conditions.
(eunless extended as provided herein) Merger Sub shall not terminate be 20 business days from the Offer prior to any scheduled expiration date without the prior written consent commencement of the Company except in the event that this Agreement is terminated in accordance with its termsOffer.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Agfa Corp)
The Offer. 2.1 The Offer ---------
(a) Prior UPR shall cause UPRI to mail and UPRI shall mail before 11:59 p.m. (Calgary time) on February 2, 1998, an offer to purchase all of the date outstanding Norcen Shares for a price of this Agreement$19.80 in cash for each Norcen Share, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed which offer shall be made in accordance with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments Securities Laws and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I Schedule A hereto (the “Offer Conditions”"Offer", which term shall include any amendments to, or extensions of, such Offer, including, without limitation, increasing the consideration, removing or waiving any condition or extending the date by which Norcen Shares may be tendered). Merger Sub expressly reserves The Offer shall be prepared in both the right English and French language and in accordance with Securities Laws. UPR shall provide Norcen with a draft copy of the Offer Documents prior to waive mailing for its review and comment.
(b) The Offer shall expire on the Initial Expiry Time, except that the Offer may be extended, subject to Section 2.1(c), if the conditions thereto set forth in Schedule A are not satisfied on the date and time at which the Offer expires and if UPRI determines, acting reasonably, that there is a reasonable prospect that the conditions of the Offer may be satisfied prior to the Expiry Time. Subject to the satisfaction or waiver of the conditions set forth in Schedule A hereto, UPRI shall, as soon as is practicable in the circumstances and in any event within the time periods required by law, accept for payment and pay for all Norcen Shares validly tendered (and not properly withdrawn) pursuant to the Offer. UPR and UPRI shall use all commercially reasonable efforts to consummate the Offer, subject to the terms and conditions thereof.
(c) Notwithstanding the foregoing, if any of the conditions set out in paragraphs (b), (c), (d) and (e) of Schedule A have not been satisfied or waived on the Initial Expiry Time, UPRI agrees to extend the Offer Conditions and for such period of time, not to make any change exceed 60 days following the Initial Expiry Time, as is necessary to satisfy or fulfill such conditions, but only if UPRI has made a bona fide determination, acting reasonably, that there is a reasonable prospect that such conditions may be satisfied within such 60 day period.
(d) It is agreed that UPRI may, in the terms of or conditions to the Offer; provided that, without the prior written consent of the Company, Merger Sub shall notits sole discretion:
(i) waive any term or change condition of the Offer for its benefit provided that if UPRI takes up and pays for any Norcen Shares it shall acquire not less than the Minimum Condition (as defined in Annex I);Required Shares; and
(ii) decrease amend any term or condition of the Offer, provided that UPRI shall not change the number of Norcen Shares for which the Offer Price;
(iii) is made, decrease or change the form of the consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amendfor each Norcen Share, modify or supplement any of amend the Offer Conditions or terms of modify the conditions to the Offer in a manner that adversely affectsis, or could reasonably be expected in the opinion of Norcen, acting reasonably, adverse to adversely affect, the holders of Norcen Shares. UPRI agrees to provide Norcen with not less than two days prior written notice of any waiver or amendment of any term or condition of the Company Shares; orOffer.
(viie) extend or otherwise change UPRI will instruct the expiration date of depositary under the Offer to advise Norcen from time to time, not less frequently than every two Business Days until the day immediately prior to the Expiry Time and thereafter on an hourly basis, if requested by Norcen and in a such manner other than as contemplated Norcen may reasonably request, as to the number of Norcen Shares that have been tendered (and not withdrawn) under the Offer.
(f) The parties hereto agree that UPR may make the Offer through UPRI but UPR shall be liable to Norcen for the full performance by UPRI under this Agreement.
(cg) Unless extended pursuant UPRI's obligation to make the Offer as set forth in Section 2.1(a) is conditional upon the execution and in accordance delivery to UPRI, concurrently with the terms execution of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right pre-tender agreement referred to extend the Offer in Section 2.2(b).
(ih) from time Prior to time if, at the scheduled or extended expiration date of the Offer, any commencement of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waivedand continuing for 20 days thereafter, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to UPR agrees that it will consider in good faith restructuring the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth contemplated in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and commencement to provide comments for a right on that response (the part of Canadian shareholders of Norcen to which reasonable either receive cash of $19.80 for each Norcen Share or cash and good faith consideration shall be given), including investment grade notes of UPRI guaranteed by participating with Parent UPR and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause if UPR agrees to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to amend the Offer, and shall cause Merger Sub Norcen consents thereto, the necessary amendments to perform, on a timely basis, all of Merger Sub’s obligations under this AgreementAgreement and the Offer will be made to give effect thereto.
Appears in 1 contract
Sources: Pre Acquisition Agreement (Union Pacific Resources Group Inc)
The Offer. (a) Prior Subject to the date provisions of this Agreement, Merger as promptly as practicable, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (i) commenced together with the rules and regulations thereunder, the "Exchange Act"), the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer (the date of such commencementand accept for payment, the “Offer Commencement Date”)and pay for, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect any Shares tendered pursuant to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto the attached Exhibit B (the “"Offer Conditions”). Merger Sub expressly reserves the right to waive ") (any of the Offer Conditions and to make any change which may be waived in the terms of whole or conditions to the Offer; provided thatin part by Sub in its sole discretion, without the prior written consent of the Company, Merger except that Sub shall not:
(i) not waive or change the Minimum Condition (as defined in Annex I);
(iiExhibit B) decrease without the Offer Price;
(iiiconsent of the Company) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements and subject to the Offer;rights of Parent and Sub to terminate this Agreement as provided in Section 8.
(vi) otherwise amend, 1. Sub expressly reserves the right to modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affectsOffer, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoingexcept that, without the consent of the Company, Merger Sub shall have not (i) reduce the right number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any other conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer or (v) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) from time to time ifextend the Offer, if at the scheduled or extended expiration date of the Offer, Offer any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been be satisfied or waived, until such Offer Conditions time as such conditions are satisfied or waived (if permitted hereunder) and waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of and (iii) extend the Offer Conditions is for any reason on one or more occasions for an aggregate period of not satisfied or waived on any scheduled more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of the Offer, Merger Sub shall extend the Offer, ifthis sentence, in each case subject to the determination right of Parent, such Offer Condition Sub or Offer Conditions could reasonably be expected the Company to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, terminate this Agreement pursuant to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Daysterms hereof. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditionsand this Agreement, Merger Sub shall, and Parent shall cause it Sub to, consummate the Offer in accordance with its terms and accept for payment payment, and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act.
(b) On the date of commencement of the Offer, Parent and Sub shall be subject only file with the SEC a Tender Offer Statement on Schedule TO (the "Schedule TO") with respect to the satisfactionOffer, which shall contain as an exhibit or waiver incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent permitted hereunder) required by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of applicable federal securities laws. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and shall use, their reasonable best efforts further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration SEC or dissemination to any comments made by the Company and its counselstockholders of the Company. Parent and Merger Sub shall agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those such comments and to provide comments on that response (to which reasonable cooperate with the Company and good faith consideration shall be given), including by participating with Parent and Merger Sub or their its counsel in responding to any discussions or meetings with the SECsuch comments.
(gc) Parent shall provide or cause to be provided to Merger Sub all of on a timely basis the funds necessary to purchase accept for payment, and pay for, any Company Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to Provided that this Agreement has not been terminated in accordance with Article VIII, as promptly as practicable after the date of this Agreement, but in no event more than ten (10) Business Days after the date of this Agreement, Merger Sub shall (iand Parent shall cause Merger Sub to) commenced commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, that Merger Sub shall not be required to commence the Offer if the Company shall not be prepared to file the Schedule 14D-9 with the SEC substantially contemporaneously with Merger Sub’s filing of the Offer Documents with the SEC.
(b) Upon the date terms and subject to the conditions set forth in this Agreement, including the prior satisfaction of such commencementthe Minimum Condition (as defined in Annex I) and the satisfaction or waiver by Merger Sub of the other conditions set forth in Annex I (collectively, the “Offer Commencement DateConditions”), Merger Sub shall (and Parent shall cause Merger Sub to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment, and promptly thereafter pay for, all Common Shares validly tendered and not validly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Common Offer Price, (ii) filed waive any Offer Condition other than the Minimum Condition, and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company (which the Company may withhold in its sole discretion), Merger Sub shall not (A) decrease the Common Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Common Shares subject to the Offer; (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and Merger Sub may waive the Minimum Condition only with the prior written consent of the Company (which the Company may withhold in its sole discretion). The Offer may not be terminated or withdrawn prior to the Expiration Date, unless this Agreement is terminated in accordance with Article VIII.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) at the end of the day on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer is first commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Offer has been extended beyond the Initial Expiration Date pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (such Initial Expiration Date, or such later date and time to which the Offer has been extended pursuant to and in accordance with this Agreement, the “Expiration Date”).
(e) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time as follows: (i) if on the applicable Expiration Date, any of the Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, then Merger Sub shall extend the Offer for successive periods of not more than ten (10) Business Days each (as determined by Merger Sub), or such other period as may be agreed by Parent and the Company, to permit the satisfaction of such Offer Conditions; and (ii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) shall (A) require Merger Sub to, and without the Company’s prior written consent (which the Company may withhold in its sole discretion) Merger Sub shall not be permitted to, extend the Offer beyond the End Date or (B) be deemed to impair, limit or otherwise restrict in any manner the right of the Parties to terminate this Agreement pursuant to the terms of Section 8.1. Neither Parent nor Merger Sub shall extend the Offer in any manner other than pursuant to and in accordance with the provisions of this Section 1.1(e) without the prior written consent of the Company (which the Company may withhold in its sole discretion).
(f) The Common Offer Price shall be adjusted proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Shares or Preferred Shares occurring on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Common Offer Price shall provide to the holders of Common Shares the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement is terminated in accordance with the terms hereof, then Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer, and shall cause any depository acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Common Shares to the registered holders thereof.
(h) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, shall contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement advertisement, if any, and any other ancillary Offer documents and instruments pursuant to which the Offer shall be made, and (collectivelyii) cause the Offer to Purchase and related documents to be disseminated to all holders of Common Shares. Parent and Merger Sub agree that they shall cause the Schedule TO and all exhibits, together with any amendments or supplements theretothereto (collectively, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required filed by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by either Parent or Merger SubSub with the SEC to comply, of each of in all material respects, with the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Exchange Act and other applicable Law. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it or any of its Representatives for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and shall supplement the information contained in the Offer Documents to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Sub have used, and further shall use, use their reasonable best efforts to promptly cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Common Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company shall promptly furnish or otherwise make available in writing to Parent and Merger Sub or Parent’s legal counsel all information concerning the Company and the Company’s stockholders that is required by applicable Law or is reasonably requested by Parent to be included in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Sub shall respond promptly to those any comments and of the SEC or its staff with respect to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub the Offer Documents or their counsel in any discussions or meetings with the SECOffer.
(gi) Parent shall cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any Company Common Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ceres, Inc.)
The Offer. (a) Prior Subject to the date satisfaction or waiver of this Agreementthe conditions in Article 9, Merger as soon as practicable but no later than five (5) Business Days after the first to occur of (x) the Effective Time and (y) the satisfaction or waiver of the conditions in Article 9, ABI Sub (i) commenced or another Subsidiary of ABI that ABI may appoint in the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed future with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger such consent not to be unreasonably withheld or delayed; provided, that any such appointment shall not release ABI or ABI Sub from any of its obligations hereunder (ABI Sub or such appointed Subsidiary of ABI, the “Offeror”), shall, and ABI shall notcause the Offeror to, commence a public tender offer in Mexico (the “Offer”) to purchase all of the outstanding Company Shares in accordance with the following terms:
(i) waive The Offer shall be made for all outstanding Company Shares to all holders of Company Shares on equal terms and shall be settled on the BMV. ABI and the Offeror shall cause the Offer to be conducted in accordance with applicable Laws, regulations, rules and interpretations of each applicable Governmental Authority or change the Minimum Condition (as defined in Annex I);stock exchange.
(ii) decrease The Offer shall remain open for twenty (20) Business Days after the Offer Price;
is commenced, unless extended in accordance with the following two sentences (iiithe last day the Offer is open, the “Expiration Date”). Without the consent of a majority of the Non-ABI Directors, the Offeror shall not (A) reduce the amount of Company Shares subject to the Offer, (B) reduce the amount of consideration payable in the Offer for any Company Share validly tendered in the Offer, (C) add or modify any condition to the Offer, (D) extend the Offer (except as provided in the immediately following sentence), (E) change the form of consideration to be paid payable in the Offer;
Offer or (iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(viF) otherwise amend, modify or supplement any of the Offer Conditions or terms of amend the Offer in a any manner that adversely affects, or could reasonably be expected materially adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent Offeror shall extend the Offer (in increments of no greater than ten (10) Business Days), if at the then applicable Expiration Date, (1) such extension is required by applicable Law or the CNBV, (2) any condition to the Offeror’s obligation to accept for payment and pay for Company Shares validly tendered in the Offer in paragraph (iii) below shall not be satisfied or (3) the holders of all or a majority of the CompanyCompany Shares are enjoined (whether temporarily or permanently) by a court of competent jurisdiction or by Order of any Governmental Authority from validly tendering their Company Shares in the Offer and such injunction or Order has not become final and non-appealable (unless otherwise agreed by a majority of the non-ABI Directors), Merger Sub it being understood that in the case of clause (3), the Offeror shall have the right not be obligated to extend the Offer hereunder by more than six (i6) months from time to time if, at the scheduled or extended expiration date of the Offer, any of on which the Offer Conditions (other than conditions which by their nature are to otherwise would have expired and in no event shall ABI be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required obligated to extend the Offer beyond the date that is twenty (20) Business Days after the Termination Date, as may be extended pursuant to Section 10.01(b) (in each case, unless ABI agrees in writing to do so). Nothing in this Agreement shall prevent ABI or any Affiliate thereof from conducting additional offers after the Expiration Date.
(iii) Subject to the terms and conditions of the Offer and as required by applicable Law and the BMV rules, on the second Business Day following the Expiration Date (the “Settlement Date”), the Offeror shall, and ABI shall cause the Offeror and the Exchange Agent to, accept and pay the Offer Consideration for all Company Shares validly tendered pursuant to the Offer. The obligations of the Offeror to accept for payment, and pay for, any Company Shares tendered in the Offer shall be subject solely to the conditions that (x) such Company Shares have been validly tendered and not withdrawn in the Offer and (y) that no Law or Order shall be in effect that would make such acceptance and payment illegal or otherwise prohibit such acceptance and payment.
(iv) To the extent permitted under applicable Law and unless otherwise consented to by the Company prior to the Settlement Date, in the event at least eighty percent (80%) but less than one hundred percent (100%) of the outstanding Company Shares are validly tendered in the Offer, the Offeror shall establish a fully funded trust (or legal entity other than a trust, the substitution of which shall not reasonably be expected to have any adverse effect on the holders of Company Shares) pursuant to definitive agreements executed by the parties thereto in accordance with the Laws of Mexico then in effect (the “Trust”) for the benefit of the holders of the remaining outstanding Company Shares, to which any holder of Company Shares that did not tender such shares into the Offer may look to receive the Offer Consideration following the Settlement Date in exchange for the delivery of the corresponding Company Shares. The purchase of Company Shares by the Trust shall be settled on the BMV, and in connection therewith ABI shall cause the Trust to make purchase orders on a periodic basis (to be no more frequent than ten (10) days per calendar month) to purchase on the BMV from time to time while the Trust is in effect all Company Shares at a price equal to the Offer Consideration. The Trust shall remain in effect until the earliest to occur of (a) the tender and acceptance for payment of one hundred percent (100%) of the outstanding Company Shares, (b) the 25-month anniversary of the Settlement Date and (c) the consummation of a capital redemption of Company Shares following which no more than 0.4% of the Company Shares outstanding as of the date hereof remain outstanding and are not held by ABI or its Affiliates; provided, that (i) in the case of clause (c), in no event shall the effective time of the termination of the Trust be earlier than the date that is six (6) months after the occurrence of the circumstances contemplated in clause (c), (ii) nothing set forth herein shall affect ABI’s or the Company’s ability to redeem, acquire or reduce the Company’s capital as a means to purchase, redeem or otherwise acquire for cancellation any and all of the then-outstanding Company Shares and (iii) if at any time prior to the termination of the Trust ABI shall deliver to the trustee for the Trust written evidence reasonably satisfactory to such trustee that ABI has acquired any number of Company Shares following the Settlement Date other than through the Trust, the trustee for the Trust shall promptly distribute to ABI an amount of immediately available funds equal to the product of such number of Company Shares acquired by ABI other than through the Trust and the Offer Consideration. ABI shall use its commercially reasonable efforts to maintain the registration and listing on the BMV of any Company Shares not purchased by the Offeror pursuant to the Offer until the earlier of (x) the End Date termination of the Trust and (y) the date that is 30 days after 25 months following the date Settlement Date, including by using commercially reasonable efforts to hold and attend meetings and make any necessary filings and take other actions within its or the Company’s control to maintain such registration or listing; provided, that all under no circumstances shall ABI be required, in connection with maintaining such listing, to challenge any formal Order or proceeding initiated by the CNBV ordering the de-registration or delisting of the Offer Conditions Company stock from the RNV and/or the BMV, to submit or otherwise undertake any obligation to adopt any regularization program aimed at maintaining the listing (other than the Minimum Condition and those that by their nature are requesting an extension to be satisfied at the expiration such regularization), to issue more shares of the Offer) have been satisfied orcapital stock of the Company, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension take active measures to increase trading volumes and/or to sell shares of the Offer capital stock of the Company or take or refrain from taking any other similar action. For the avoidance of doubt, the Trust shall be for a period available to accept tenders of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject Company Shares that are issued or issuable to the terms and conditions set forth DIFA Selling Shareholders (as defined in this Agreement and to the satisfaction or waiver (if permitted hereunderDIFA Merger Agreement) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in DIFA Merger Agreement following the Subsequent Offering Period (later of the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” Settlement Date and the date on which the DIFA Merger becomes effective, and the Offeror shall be obligated to fully fund the Trust with the amount of the Offer Consideration attributable to the Company Shares are first accepted to be issued as consideration in the DIFA Merger upon, but not prior to, the closing date of the DIFA Merger.
(v) The Offeror or ABI will pay all fees and expenses incurred by ABI and any of its Affiliates in connection with making the Offer, including those of the Exchange Agent (which shall in no event include any fees or expenses with respect to the exchange of U.S. dollars into Pesos, which fees and expenses shall not be borne by the Offeror or ABI or their respective Affiliates). For the avoidance of doubt, the Offeror shall not be responsible for payment fees of brokers engaged by tendering shareholders or for other expenses incurred by tendering shareholders in connection with the tendering of their shares. None of the Offeror, ABI or any of ABI’s Subsidiaries shall have any obligation or responsibility in connection with any taxes that may be imposed directly or indirectly under the Laws of any jurisdiction on the tendering shareholders’ proceeds, gains or income arising from the tender of Company Shares pursuant to the Offer or any other transaction contemplated by this Agreement.
(vi) To the extent permitted under then-applicable Law, if upon the 25-month anniversary of the Settlement Date greater than 0.4% of the Company Shares outstanding as of the date hereof shall remain outstanding and not be held by ABI or its Affiliates, ABI shall, or shall cause the Offeror to, commence a public tender offer in Mexico to purchase all of the outstanding Company Shares upon the same terms and subject to the same conditions as the Offer; provided, that, for the avoidance of doubt, subject to any requirement of the CNBV, the Offeror shall not be required to establish the Trust contemplated in Section 2.06(a)(iv) following the settlement of such public tender offer.
(b) Prior to commencing the Offer, the Offeror shall designate a Mexican licensed broker-dealer reasonably acceptable to the Company to act as broker-dealer for the Offer (the “Acceptance Exchange Agent”).
(c) As promptly as reasonably practicable after the Shareholders’ Meetings Date, ABI, the Offeror and the Exchange Agent, as applicable, shall execute and file with the CNBV, the BMV, Indeval and any other applicable Governmental Authority and/or otherwise disclose all documents required under applicable Law and this Agreement to be filed in connection with the Offer and the public announcements thereof, including the prospectus or folleto informativo required therefor (collectively, the “Mexican Offer Documents”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub Offeror and the Company agrees Exchange Agent, as applicable, will promptly to correct any information provided by it in writing for use in the Schedule TO and the Mexican Offer Documents if and to the extent that such information shall have become (false or misleading in any material respect, to the extent any Governmental Authority shall so require or if advisable as a means to complete the Offer. The Company will promptly inform ABI in the event that any information provided by it in writing specifically for use in the Mexican Offer Documents shall have become known to be) false or misleading in any material respect. Parent Each of ABI and Merger Sub have usedthe Offeror agrees to take all steps necessary to cause, and shall useas may be applicable, their reasonable best efforts to cause the Schedule TO Mexican Offer Documents as so corrected to be filed with the SEC CNBV and BMV, as the Offer Documents as so corrected to be case may be, and published or otherwise disseminated to holders of Company Shares, in each case as and to the extent required by applicable federal securities lawsLaws.
(d) Subject to the terms and conditions of this Agreement, on the Settlement Date, the Offeror shall acquire all Company Shares that have been validly tendered, and not withdrawn, in accordance with the Mexican Offer Documents and applicable Law on or before the Expiration Date of the Offer, and pay to the applicable tendering shareholders of the Company as consideration for each Company Share validly tendered, and not withdrawn, by such shareholder prior to the Expiration Date of the Offer an amount in immediately available funds equal to US$9.15, without interest (such amount of immediately available funds, the “Offer Consideration”). The ABI, ABI Holdings and ABI Sub hereby acknowledge that the holders of Company Shares have no obligation to participate and sell Company Shares in the Offer and, therefore, acknowledge that there is no certainty or assurance that the shareholders of the Company will be willing to tender their Company Shares in the Offer.
(e) At the option of each shareholder of the Company who tenders its counsel Company Shares, the Offer Consideration can be paid in U.S. dollars or Pesos at the prevailing market exchange rate available to the Exchange Agent one Business Day prior to the Settlement Date (the “Peso Exchange Rate”). If a tendering shareholder does not make an election or has not provided a valid U.S. dollar account to permit such shareholder to receive U.S. dollars, the Offer Consideration shall be given a reasonable opportunity to review and comment on any change paid in Pesos by the Exchange Agent at the Peso Exchange Rate. For the avoidance of doubt, ABI’s delivery to the Schedule TO Exchange Agent of the aggregate Offer Consideration shall be made in U.S. dollars, and the Exchange Agent shall obtain Pesos for payment to tendering shareholders electing to receive Pesos; provided, that nothing herein shall relieve ABI of its obligation to pay the entire amount of the Offer Documents each time before any such document is filed with Consideration payable pursuant to the SECOffer and, if applicable, through the Trust on the terms set forth herein.
(f) As and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by when required under applicable Law, the board of directors of the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff will issue a public statement with respect to the Schedule TO or Offer Documents promptly after receipt Consideration pursuant to Article 101 of those comments or other communications the LMV, which statement (if requested by the board of directors of the Company and (iito the extent reasonably practicable) will be supported by a reasonable opportunity fairness opinion received from an investment banking firm. ABI, ABI Holdings and ABI Sub hereby acknowledge and agree that the issuance of such statement is the responsibility of the board of directors of the Company and, even if such statement of the board of directors is in favor of the terms of the Offer, the holders of Company Shares have no obligation to participate and sell Company Shares in the response Offer and, therefore, acknowledge that there is no certainty or assurance that the shareholders of Parent and Merger Sub the Company will be willing 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 Sub or tender their counsel Company Shares in any discussions or meetings with the SECOffer.
(g) Parent Following the Effective Time, in the event that (x) ABI shall cause fail to be provided commence or close and settle the Offer as a result of either (A) a material breach by ABI of its obligations hereunder that has caused or contributed materially to Merger Sub such failure, or (B) a final, non-appealable injunction or similar Order prohibiting ABI from commencing, closing or settling the Offer or (y) a final, non-appealable injunction or similar Order issued by a court of competent jurisdiction or any Governmental Authority prohibiting the holders of all or a majority of the funds necessary Company Shares from tendering their Company Shares in the Offer, then, subject to purchase the next succeeding sentence, (i) the amendments to the Charter Documents contemplated by Section 2.02(a)(x) shall not become effective and (ii) except as otherwise approved by the Company (including pursuant to the Offer hereunder), for a period of five (5) years following the earlier to occur of the events described in clauses (x) and (y) of this Section 2.06(g), ABI shall be prohibited from purchasing Company Shares, other than any Company Shares tendered in the Offer that Merger Sub becomes ABI is obligated to purchase pursuant to the OfferOffer or pursuant to the Trust and any Company Shares that ABI has a right to acquire pursuant to its rights under the Covenant Agreements. The foregoing sentence shall not apply (1) if, in the case of clause (x), a material breach by the Company of its obligations hereunder has contributed materially to the failure to commence or close and shall cause Merger Sub settle the Offer and no material breach by ABI of its obligations hereunder contributed materially to performsuch failure, on or (2) if, in the case of clause (y), a timely basis, all material breach of Merger Sub’s obligations under this Agreement.the Covenant Agreements by any of the holders of Company Shares has c
Appears in 1 contract
The Offer. (a) Prior Provided that this Agreement shall not have been terminated in accordance with Article 7, as promptly as practicable (but in no event later than ten (10) Business Days) after the date hereof, Merger Sub shall (and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d 2 under the Exchange Act, the Offer to purchase for cash any and all (i) Company Shares (other than Company Shares to be cancelled in accordance with Section 2.1(b)) at the Company Share Offer Price, (ii) shares of Series A Preferred Stock at the Series A Offer Price and (iii) shares of Series B Preferred Stock at the Series B Offer Price. Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for all Company Shares and shares of Company Preferred Stock, as applicable, validly tendered and not properly withdrawn pursuant to the Offer, subject only to: (a) there being validly tendered in the Offer (in the aggregate) and not properly withdrawn prior to the Expiration Date (1) that number of Company Shares and shares of Company Preferred Stock that, together with the number of Company Shares and shares of Company Preferred Stock (if any) then owned by the Parent, equals at least a majority in voting power of the Company Shares and shares of Company Preferred Stock then issued and outstanding, voting together as a single class, (2) that number of shares of Series A Preferred Stock that, together with the number of shares of Series A Preferred Stock (if any) then owned by Parent, equals at least a majority of the shares of Series A Preferred Stock then issued and outstanding, and (3) that number of shares of Series B Preferred Stock that, together with the number of shares of Series B Preferred Stock (if any) then owned by Parent, equals at least a majority of the shares of Series B Preferred Stock then issued and outstanding (collectively, the “Minimum Condition”); and (b) the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I.
(b) On or prior to the date that Merger Sub becomes obligated to pay for Company Shares and shares of Company Preferred Stock pursuant to the Offer, Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for any and all Company Shares and shares of Company Preferred Stock, as applicable, that Merger Sub shall become obligated to accept for payment and purchase pursuant to the Offer. Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I, Merger Sub shall accept for payment (the time of such acceptance, the “Acceptance Time”) and pay for all Company Shares and shares of Company Preferred Stock validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable following the Expiration Date, and, in any event, no more than three Business Days after the Expiration Date. The Offer Price payable in respect of each Company Share and share of Company Preferred Stock, as applicable, validly tendered and not properly withdrawn pursuant to the Offer shall be paid to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law, 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 to Purchase”) that describes the terms and conditions of the Offer in accordance with applicable Law and this Agreement, including the conditions and requirements set forth in Annex I. To the extent permitted by applicable Law, Parent and Merger Sub expressly reserve the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that except with the prior written approval of the Company, Merger Sub shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Company Shares or shares of Company Preferred Stock sought to be purchased in the Offer, (iv) amend, modify or waive the Minimum Condition, (v) amend any of the other conditions to the Offer set forth in Annex I in a manner adverse to the holders of Company Shares or shares of Company Preferred Stock, (vi) impose conditions to the Offer that are in addition to the conditions to the Offer set forth in Annex I hereto, (vii) except as provided in Sections 1.1(e) and 1.1(f), terminate, accelerate or otherwise modify or amend the Offer to accelerate the Expiration Date, or (viii) otherwise modify or amend any of the other terms of the Offer in a manner adverse in any material respect to the holders of Company Shares or shares of Company Preferred Stock.
(d) Unless extended in accordance with the terms of this Agreement, Merger Sub the Offer shall expire at 12:00 midnight (iNew York City time) commenced on the date that is twenty (20) Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on any then scheduled Expiration Date, any of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to 10 Business Days each, or such longer period as may be agreed between Merger Sub and the Company, in order to permit the satisfaction of such conditions; provided, however, that Merger Sub shall not be required to extend the Offer beyond the Outside Date. The “Outside Date” shall be July 15, 2017. In addition, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of SEC or its staff.
(f) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement has been terminated in accordance with Article 7. If this Agreement is terminated in accordance with Article 7, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours following such termination), irrevocably and unconditionally terminate the Offer and shall not acquire any Company Shares or shares of Company Preferred Stock pursuant thereto. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, Merger Sub shall (and the Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Company Shares and shares of Company Preferred Stock to the registered holders thereof and Merger Sub shall not (and Parent shall cause Merger Sub not to) accept any Company Shares or shares of Company Preferred Stock pursuant to the Offer.
(g) As soon as practicable on the date of such commencementthe commencement of the Offer, the “Offer Commencement Date”), (ii) filed Parent and Merger Sub shall file with the SEC 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 amendments, supplements and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and). The Schedule TO shall include, as exhibits, the Offer to Purchase and Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments or amendments, supplements and exhibits thereto, the “Offer Documents”) ). Parent and (iii) caused Merger Sub agree to cause the Offer Documents to be disseminated to holders of Company Shares and shares of Company Preferred Stock, as and to the extent required by applicable federal securities laws.
(b) The Offer is subject only to Laws, including the conditions set forth in Annex I hereto (Exchange Act. Parent and Merger Sub, on the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions one hand, and to make any change in the terms of or conditions to the Offer; provided that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after other hand, agree to promptly notify the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) party and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. Parent respect or as otherwise required by applicable Law, and Merger Sub have used, and shall use, their reasonable best efforts agrees to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of SharesCompany Shares and shares of Company Preferred Stock, in each case 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 and comment on any change to the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith due consideration to any comments made additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Sub shall provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether and shall provide them a written or oralsummary of any oral comments, that Parent, Parent and Merger Sub or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments such comments, and any written or other communications oral responses thereto. The Company and (ii) its counsel shall be given a reasonable opportunity to participate in the response of review any such responses and Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith shall give due consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offerreasonable additions, deletions or changes suggested thereto by the Company and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreementits counsel.
Appears in 1 contract
Sources: Merger Agreement (Integra Lifesciences Holdings Corp)
The Offer. (a) Prior to Not later than the first business day after the date of this Agreement, Merger Sub (i) commenced ACQUIROR, Acquisition Subsidiary and OPTA will make a public announcement of the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawsOffer.
(b) Provided that this Agreement shall not have been terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto shall have occurred or be existing, Acquisition Subsidiary shall commence, and ACQUIROR shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as practicable after the date hereof, but in no event later than five (5) business days after the initial public announcement of Acquisition Subsidiary's intention to commence the Offer. The obligation of Acquisition Subsidiary to accept for payment and pay for OPTA Shares tendered pursuant to the Offer is shall be subject only to the satisfaction of the conditions set forth in Annex I A hereto (unless the “failure of any such condition was caused by any breach by ACQUIROR or Acquisition Subsidiary of this Agreement in which case Acquisition Subsidiary shall be obligated to accept for payment and pay for OPTA Shares tendered pursuant to the Offer Conditions”provided that such failure has been waived by OPTA), including the condition that a number of OPTA Shares representing that number of OPTA Shares which would equal more than fifty percent (50%) of the OPTA Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Merger Sub Acquisition Subsidiary expressly reserves the right to waive any of such condition, to increase the Offer Conditions Per Share Amount and to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that, without the prior written consent of the CompanyOPTA, Merger Sub shall not:
Acquisition Subsidiary will not (i) waive or change decrease the Minimum Condition (as defined in Annex I);
Per Share Amount, (ii) decrease reduce the Offer Price;
maximum number of OPTA Shares to be purchased in the Offer, (iii) change the form of the consideration to be paid payable in the Offer;
, (iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amendadd to, modify or supplement any of the conditions to the Offer Conditions or terms of the Offer set forth in a manner that adversely affectsAnnex A hereto, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(viiv) extend or otherwise change the expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) make any other change in a manner other than the terms or conditions of the Offer which is adverse to the holders of OPTA Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Acquisition Subsidiary shall, and ACQUIROR shall cause Acquisition Subsidiary to, accept for payment and pay, as contemplated by this Agreementpromptly as practicable after expiration of the Offer, for all OPTA Shares validly tendered and not withdrawn.
(c) Unless extended pursuant to On the date of commencement of the Offer, ACQUIROR and in accordance Acquisition Subsidiary shall file with the terms Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the "Schedule TO"), with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the forms of related letters of transmittal (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to OPTA'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. ACQUIROR and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading, and ACQUIROR and Acquisition Subsidiary shall take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of OPTA Shares, in each case as and to the extent required by applicable law. OPTA and its counsel shall be given the reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. ACQUIROR and Acquisition Subsidiary shall provide OPTA and its counsel with a copy of any written comments or telephonic notification of any oral comments ACQUIROR or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. ACQUIROR and its counsel shall provide OPTA and its counsel with a reasonable opportunity to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Offer Documents or this Agreement. In the event that ACQUIROR or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond promptly to such comments and take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms and conditions hereof, the Offer shall expire at midnight (New York City time) remain open until midnight, Eastern Time, on the twentieth Business Day date that is twenty (20) business days after the Offer Commencement Date. Notwithstanding is commenced (within the foregoingmeaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of the CompanyOPTA, Merger Sub shall have the right to extend the Offer Acquisition Subsidiary may (i) from time to time ifextend the Offer, if at the scheduled or extended expiration date of the Offer, Offer any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) set forth in Annex A shall not have been satisfied or waived, for one (1) or more periods (none of which shall exceed ten (10) business days) not to exceed thirty (30) business days in the aggregate or, if earlier, until such Offer Conditions time as such conditions are satisfied or waived (if permitted hereunder) and waived, (ii) extend the Offer for any period one (1) or more periods, not to exceed thirty (30) business days in the aggregate, if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, or (iii) extend the Offer on one (1) occasion for an aggregate period of not more than ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of OPTA Shares which would equal more than ninety percent (90%) of the issued and outstanding OPTA Shares; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a) or (d) in Annex A. If on the initial scheduled expiration date of the Offer or any extension thereof, any applicable waiting period otherwise required by under any applicable Legal Requirement. If any foreign laws regulating competition, antitrust, investment or exchange controls has not expired or terminated prior to the expiration of the Offer Conditions is (the "Foreign Antitrust Condition"), Acquisition Subsidiary shall, if requested to do so by OPTA, extend the expiration date of the Offer until a date not satisfied later than January 15, 2003 and ACQUIROR shall use its best efforts to obtain all permits, authorizations, consents, expiration or waived termination of waiting periods, and approvals as may be required by any Governmental Entity. In addition, ACQUIROR and Acquisition Subsidiary each agree that if all of the conditions set forth in Annex A are not satisfied, including the satisfaction of the Minimum Condition, on any scheduled expiration date of the Offer, Merger Sub then Acquisition Subsidiary shall, and ACQUIROR shall extend the Offercause Acquisition Subsidiary to, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier for one (1) or more periods of not less than ten (x10) the End Date and (y) the date business days if requested to do so by OPTA, provided that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer OPTA shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period entitled to make only three (“Subsequent Offering Period”3) in accordance with Rule 14d-11 of the Exchange Actsuch requests.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Article VIII and none of the events set forth in paragraph (g) of Exhibit A shall exist or have occurred and be continuing, as promptly as reasonably practicable, and in any event no later than the later of the 10th calendar day after the date of this Agreementhereof and November 5, 2015 Merger Sub shall, and Parent shall cause Merger Sub to, commence (i) commenced within the Offer meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the date of such commencementrules and regulations promulgated thereunder, the “Offer Commencement DateExchange Act”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawsOffer.
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive $1.00 in cash, without interest and subject to any withholding of Taxes required by applicable Law (such amount for each Share or such higher price per Share that may be paid pursuant to the Offer, the “Share Consideration”).
(c) In the Offer, each Public Warrant accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive $0.02 in cash, without interest and subject to any withholding of Taxes required by applicable Law (such amount for each Public Warrant or such higher price per Public Warrant that may be paid pursuant to the Offer, the “Public Warrant Consideration”).
(d) [Intentionally Omitted.]
(e) The obligations of Merger Sub, and of Parent to cause Merger Sub, to accept for payment and pay for any Shares or Public Warrants tendered pursuant to the Offer is shall be subject only to the satisfaction by the Company or waiver by Merger Sub of the conditions set forth in Annex I Exhibit A hereto (the “Offer Conditions”)) and the terms and conditions hereof. Merger Sub expressly reserves the right right, in its sole discretion, to waive any Offer Condition or to modify the terms or conditions of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided , except that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have not (i) reduce the right Share Consideration, (ii) change the form of consideration payable in the Offer (other than by adding consideration pursuant to Section 6.2(e)), (iii) reduce the number of Shares subject to the Offer, (iv) waive or change the Minimum Share Condition, (v) add to the Offer Conditions, (vi) extend the expiration of the Offer except as required or permitted by Section 1.1(f), or (vii) otherwise modify any Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the holders of Shares.
(f) The Offer shall expire in accordance with its terms on the date that is 20 Business Days after the commencement of the Offer, except as may otherwise be required by applicable Law; provided, however, that Merger Sub may (but shall not be obligated to), without the consent of the Company, extend the Offer (i) from time to time if, if at the scheduled or extended expiration date of the Offer, Offer any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, for one or more successive periods of up to 20 Business Days per extension until the earlier to occur of (A) the date such Offer Conditions are satisfied or waived or (if permitted hereunderB) and January 31, 2016 (the “Outside Date”) or (ii) for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof or the rules of NASDAQ applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(dg) Subject to the terms of the Offer and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) by Merger Sub of all of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and will accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), for all Company Shares and Public Warrants validly tendered and not validly withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in as soon as practicable after the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub shall not terminate the Offer prior to any scheduled expiration date without thereof (as the prior written consent of the Company except in the event that this Agreement is terminated in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (same may be extended or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected required to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenextended), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Perseon Corp)
The Offer. (a) Prior to Provided that this Agreement has not been terminated in accordance with Article 8, as promptly as practicable after the date of this Agreement, Merger Sub but in no event more than fifteen (i15) commenced the Offer (Business Days after the date of such commencementthis Agreement, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) Upon the terms and subject to the conditions set forth in this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Purchaser of the other conditions set forth in Annex I (collectively, the “Offer Commencement DateConditions”), Purchaser shall (and Parent shall cause Purchaser to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment and promptly thereafter (and in any event within three (3) Business Days of the Expiration Date) pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser reserves the right to (i) increase the Offer Price, (ii) filed waive any Offer Condition other than the Minimum Condition, and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares subject to the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in any manner that adversely affects holders of Shares, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and Purchaser may waive the Minimum Condition only with the prior written consent of the Company. The Offer may not be terminated or withdrawn prior to the Expiration Date, unless this Agreement is terminated in accordance with Article 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (i.e., one minute after 11:59 pm) (New York City time) on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer is first commenced (within the meaning of Rule 14d-2 under the Exchange Act), or, in the event the Offer has been extended beyond the initial expiration date pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (such initial expiration date, or such later date and time to which the Offer has been extended pursuant to and in accordance with this Agreement, the “Expiration Date”).
(e) Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from time to time as follows: (i) if on the applicable Expiration Date, any of the Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Purchaser pursuant to this Agreement, waived by Parent or Purchaser, then Purchaser shall extend the Offer for successive periods of ten (10) Business Days each, or such other period as may be agreed by Parent and the Company, to permit the satisfaction of such Offer Conditions; and (ii) Purchaser shall extend the Offer for the minimum period required by applicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) shall (A) require Purchaser to, and without the Company’s prior written consent Purchaser shall not be permitted to, extend the Offer beyond the End Date, or (B) be deemed to impair, limit or otherwise restrict in any manner the right of the parties to terminate this Agreement pursuant to the terms of Section 8.1. Neither Parent nor Purchaser shall extend the Offer in any manner other than pursuant to and in accordance with the provisions of this Section 1.1(e) without the prior written consent of the Company.
(f) Neither Parent nor Purchaser shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement is terminated pursuant to the terms hereof, then 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, shall not acquire any Shares pursuant to the Offer, and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all tendered Shares to the registered holders thereof.
(g) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, shall contain as exhibits, an exhibit or incorporate by reference the Offer to Purchase and a form forms of the related letter of transmittal and transmittal, summary advertisement and notice of guaranteed delivery, if any, and any other ancillary Offer documents and instruments pursuant to which the Offer shall be made (collectivelysuch Schedule TO and documents, together with any supplements and amendments or supplements thereto, the “Offer Documents”) and (iiiii) caused cause the Offer Documents to Purchase and related documents to be disseminated to all holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”)Shares. Merger Sub expressly reserves the right to waive any of Parent and Purchaser agree that they shall cause the Offer Conditions and to make any change in the terms of Documents filed by either Parent or conditions to the Offer; provided that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance Purchaser with the terms of this Agreement, SEC to comply in all material respects with the Offer shall expire at midnight (New York City time) on Exchange Act and the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (rules and regulations thereunder and other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal RequirementRequirements. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub Purchaser and the Company agrees shall promptly to correct any information provided by it or any of its Representatives for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and to supplement the information contained in the Offer Documents to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Sub have used, and Purchaser further shall use, their use reasonable best efforts to promptly cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLegal Requirements. The Company shall promptly furnish or otherwise make available in writing to Parent and Purchaser or Parent’s legal counsel all information concerning the Company and its stockholders that is required or is reasonably requested by Parent to be included in the Offer Documents. Unless previously modified or withdrawn in accordance with Section 5.3, Parent and Purchaser shall be entitled to include a description of the Company Board Recommendation in the Offer Documents. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC and Parent and Purchaser shall give reasonable and good faith consideration to any such comments. 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 the SEC or its staff with respect to the Offer Documents promptly after receipt of 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 in coordination with the Company, shall provide the Company a reasonable opportunity to review and comment on upon the responses to any change such comments and a copy of any such proposed written responses thereto prior to the Schedule TO filing thereof and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECsuch responses.
(gh) Parent shall cause to be provided to Merger Sub Purchaser on a timely basis all of the funds necessary to purchase any Company Shares that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub Purchaser to perform, to the extent required and on a timely basis, all of Merger SubPurchaser’s obligations under this Agreement.
(i) For purposes of this Agreement and the Offer, unless mutually agreed by Parent and the Company, any Shares subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer (including for purposes of determining whether the Minimum Condition has been satisfied) unless and until the Shares underlying such notices of guaranteed delivery are received, as defined by Section 251(h)(6) of the DGCL.
Appears in 1 contract
The Offer. (a) Prior Provided that this Agreement shall not have been terminated in accordance with SECTION 11.01 and none of the events set forth in ANNEX I hereto shall have occurred and be continuing, as promptly as practicable, but in no event later than three business days, after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the date of this Agreementextent required by the Exchange Act, Merger Sub (i) commenced the Offer an amended Form TO (the date of such commencement"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 Commencement Date”)to Purchase and such other documents, (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”"OFFER DOCUMENTS") that included to reflect, among other things, an increase in the summary term sheet required thereby and, as exhibits, per share price to be paid in the Offer to Purchase $30.00 and, if necessary, an extension of the currently scheduled expiration date to allow the Offer to remain open for ten business days from the date of such increase. The obligation of Merger Co. to consummate the Offer and to accept for payment and to pay for shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn, a form number of letter of transmittal and summary advertisement (collectivelyshares that, together with any amendments or supplements theretothe shares of Company Common Stock then owned by Parent and/or Merger Co., represents 50.1% of the “Offer Documents”shares of Company Common Stock outstanding (the "MINIMUM CONDITION") and (iiiii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the other conditions set forth in Annex ANNEX I hereto (the “Offer Conditions”)hereto. Merger Sub Co. expressly reserves the right to waive any of such condition (other than the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided thatMinimum Condition, which shall not be waived without the prior written consent of the Company) or the condition relating to the expiration of the HSR Act and to increase the Per Share of Company Common Stock Amount. Notwithstanding the foregoing, Merger Sub shall not:
no change may be made which (i) waive or change decreases the Minimum Condition (as defined in Annex I);
Per Share of Company Common Stock Amount, (ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid in the Offer;
, (iii) increases the Maximum Amount or the Minimum Condition, (iv) decrease reduces the number of shares of Company Shares Common Stock sought to be purchased in the Offer;
, (v) impose additional Offer Conditions or other requirements imposes conditions to the Offer;
Offer in addition to those set forth in ANNEX I hereto, (vi) otherwise amendexcept as specifically provided for in this SECTION 2.01(a), modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change extends the expiration date of the Offer in a manner other than as contemplated by this Agreement.
or (cvii) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled otherwise alters or extended expiration date of the Offer, amends any term of the Offer Conditions (other than conditions which by their nature are in any manner adverse to the holders of shares of Company Common Stock; provided, however, that the Offer may be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) 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 or any period otherwise required by applicable Legal RequirementOffer. If any Parent and Merger Co. shall comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the generality of the Offer Conditions is foregoing, subject to the terms and conditions of this Agreement, including but not satisfied or waived on any scheduled expiration date limited to the conditions of the Offer, Merger Sub Co. shall and Parent shall cause Merger Co. to, accept for payment and pay for shares of Company Common Stock tendered pursuant to the 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, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided in the event that, in each caseat a then-scheduled expiration date, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the conditions to the Offer Conditions have not been satisfied or waived as permitted pursuant to this Agreement, each such extension not to exceed (other than unless otherwise consented to in writing by the Minimum Condition and those Company) the lesser of 10 additional business days or such fewer number of days that by their nature Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied 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) have Offer a number of shares of Company Common Stock has been satisfied orvalidly 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 the extent permissible, have been waived be purchased by Merger Sub and (ii) no such individual extension of Co. pursuant to the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) prorated in accordance with Rule 14d-11 of 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, 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.
(db) Subject to Provided that this Agreement shall not have been terminated in accordance with SECTION 11.01 and none of the terms and conditions events set forth in this Agreement ANNEX II hereto shall have occurred and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay forbe continuing, as promptly as practicable after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall (i) after commence the expiration Exchange Offer pursuant to which Merger Co. shall offer to issue a number of duly authorized, validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the Exchange Offer Ratio (regardless as defined below) for each then issued and outstanding share of Subsequent Offering PeriodsCompany Common Stock (other than shares of Company Common Stock then owned by Parent or Merger Co.), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) file with the SEC, to the extent required by the Exchange Act, a Form TO (the "EXCHANGE FORM TO"), an Offer to Exchange (the "OFFER TO EXCHANGE") and the related letter of transmittal and any related summary advertisement (the Exchange Form TO, the Offer to Exchange and such other documents, together with all Company Shares validly tendered amendments and supplements thereto, the "EXCHANGE OFFER DOCUMENTS") and (iii) file with 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 Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Exchange Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (Co. to consummate the Exchange Offer and to issue shares of Parent to cause Merger Sub) to accept Common Stock in exchange for payment, and pay the Offer Price for, each shares of Company Share validly Common Stock tendered and not properly withdrawn pursuant to the Exchange Offer shall be subject only to the satisfaction, or waiver 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 extent permitted hereunder) Offer representing, together with shares of Company Common Stock previously owned by Parent or Merger SubParent, of each 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 Conditions.
(e) Merger Sub to the Depositary under the Exchange Offer, which condition shall not terminate the Offer prior to any scheduled expiration date be waived without the prior written consent of the Company except 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) changes the form of consideration to be paid in the event that this Agreement is terminated in accordance with its terms.
Exchange Offer, (fiii) Each reduces the number of Parent, Merger Sub and the shares of Company agrees promptly Common Stock sought to correct any information provided by it for use be purchased in the Schedule TO and the Offer Documents if and Exchange Offer, (iv) imposes conditions to the extent that such information shall have become Exchange Offer in addition to those set forth in ANNEX II hereto, (v) extends the expiration date of the Exchange Offer or shall have become known to be(vi) false otherwise alters or misleading amends any term of the Exchange Offer in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts manner adverse to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Common Stock; provided, in each case 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 laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and Exchange Offer or (y) if the Offer Documents each time before any such document is filed number of shares of Company Common Stock validly tendered in accordance with the SECExchange Offer, and together with shares of Company Common Stock owned by Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by as of such date, is less than 90% of the outstanding shares of Company and its counselCommon Stock, as of the scheduled or extended expiration date. Parent and Merger Sub Co. shall provide comply with the Company obligations respecting prompt delivery of shares of Parent Common Stock and its counsel with (i) any comments or other communicationsannouncement under the Exchange Act, whether written or oraland, that Parentwithout 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 Sub or their counsel may receive 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 from in the SEC or its staff with respect event that, at a then-scheduled expiration date, all of the conditions to the Schedule TO 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 Documents promptly after receipt 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 those comments or other communications Company Common Stock and (ii) 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 reasonable opportunity to participate fractional share of Parent Common Stock in the response of Parent and Merger Sub Exchange Offer will be paid an amount in cash equal to those comments and to provide comments on that response the product obtained by multiplying (A) the fractional share interest to which reasonable and good faith consideration shall such holder would otherwise be givenentitled by (B) the Average Exchange Offer Price (as defined below), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(gc) For purposes of this SECTION 2.01, "EXCHANGE OFFER RATIO" means the number of shares of Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.Common Stock determined as set forth below:
Appears in 1 contract
Sources: Merger Agreement (Ibp Inc)
The Offer. (a) Prior Provided that nothing shall have occurred that would result in a failure to the date satisfy any of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto hereto, as promptly as practicable after the date hereof, but in no event later than five business days following the public announcement of this Agreement, Merger Subsidiary shall commence an offer (the “"Offer") to purchase any and all of the outstanding Shares at a price of $8.00 per Share, net to the seller in cash. Subject to Section 2.01(c), the Offer Conditions”)shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and Merger Subsidiary, represents at least 90% of the Shares outstanding (the "Minimum Condition") and to the other conditions set forth in Annex I hereto. Merger Sub Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change in the terms of or conditions to of the Offer; , provided that, subject to Section 2.01(c), no change or waiver may be made that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change waives the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change Condition, changes the form of consideration to be paid in paid, decreases the Offer;
(iv) decrease price per Share or the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements , imposes conditions to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affectsaddition to those set forth in Annex I, or could reasonably be expected is otherwise adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub Subsidiary shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions conditions are satisfied or waived (if permitted hereunder) and or (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirementlaw. If any all of the conditions to the Offer Conditions is are not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub Subsidiary shall either (i) extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions conditions are satisfied or waived; , provided that, in each case, (i) that Merger Sub Subsidiary shall not be required to extend the Offer beyond the earlier of July 31, 1999 (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to if the extent permissiblesecond sentence of Section 11.01(b)(i) applies, have been waived by Merger Sub and beyond September 30, 1999) or (ii) no such individual extension of exercise its rights under 2.01(c). Subject to the Offer shall be for a period of more than five Business Days. Following expiration foregoing and to the terms and conditions of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub Subsidiary shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods)Offer, all Company Shares validly properly tendered and not withdrawn pursuant to the Offer and that Merger Subsidiary is obligated to purchase. The Offer shall have an initial scheduled expiration date 20 business days following commencement thereof.
(iib) all Company Shares validly tendered in As soon as practicable on the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under date of commencement of the Offer, Merger Subsidiary shall file with the “Acceptance Time” and SEC a Tender Offer Statement on Schedule 14D-1 (the date on which Company Shares are first accepted for payment under "Schedule 14D-1") with respect to the Offer, which will contain the “Acceptance Date”offer to purchase and form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts Subsidiary agrees to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of 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 an opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SECSEC or disseminated to the holders of Shares.
(c) In the event the Minimum Condition is not satisfied on any scheduled expiration date of the Offer, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by Subsidiary may, without the Company and its counsel. Parent and Merger Sub shall provide consent of the Company and its counsel with Company:
(i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time extend the Offer pursuant 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 Section 2.01(a);
(ii) a reasonable opportunity amend the Offer to participate waive the Minimum Condition in contemplation of the exercise the Top-Up Stock Option (to the extent the Top-Up Stock Option is exercisable at such time); or
(iii) amend the Offer to provide that, in the response event (x) the Minimum Condition is not satisfied at the next scheduled expiration date of Parent the Offer (without giving effect to the exercise of the Top-Up Stock Option) and (y) the number of Shares tendered pursuant to the Offer and not withdrawn as of such next scheduled expiration date is more than 50% of the then outstanding Shares, Merger Sub Subsidiary shall:
(A) reduce the Minimum Condition to those comments the Revised Minimum Number,
(B) reduce the number of Shares subject to the Offer to a number of Shares that when added to the Shares then owned by Merger Subsidiary will equal the Revised Minimum Number, and
(C) if a number of Shares greater than the Revised Minimum Number is tendered into the Offer and not withdrawn, purchase, on a pro rata basis, the Revised Minimum Number of Shares. Notwithstanding any other provision of this Agreement, in the event that Merger Subsidiary purchases a number of Shares equal to provide comments on that response the Revised Minimum Number, then without the prior written consent of Merger Subsidiary, at any time prior to the termination of this Agreement, the Company shall take no action whatsoever (to including, without limitation, the redemption of any Shares) which reasonable and good faith consideration shall be given), including would have the effect of increasing the percentage ownership of Shares by participating with Parent and Merger Sub or their counsel Subsidiary in any discussions or meetings with excess of the SECRevised Minimum Number.
(gd) In the event that all conditions to the Offer other than the Minimum Condition shall have been satisfied and Shares have not been accepted for payment by Merger Subsidiary prior to July 15, 1999 (or, if the second sentence of Section 11.01(b)(i) applies, September 15, 1999), then on such date Parent shall cause be required to be provided to Merger Sub all of take either the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to action contemplated by Section 2.01(c)(ii) above or the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreementaction contemplated by Section 2.01(c)(iii) above.
Appears in 1 contract
The Offer. (a) Prior Provided that (i) this Agreement shall not have been terminated in accordance with Article X, (ii) all of the conditions set forth in clauses 2(a), (b), (c), (d), (e), (f), (i), (j) and (k) of Annex I shall then be satisfied (in the case of clause 2(f), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived by Parent or Acquisition Sub and (iii) the Company has timely provided any information required to be provided by it pursuant to Section 2.01(h), as promptly as practicable after the date of this Agreement (and in any event within ten Business Days of the date of this Agreement), Merger Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Parent and Acquisition Sub of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), as soon as practicable after the Expiration Date, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) consummate the Offer in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Parent and Acquisition Sub expressly reserve the right to (i) commenced increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Parent and Acquisition Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects holders of Shares generally, (F) waive, amend or otherwise change the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be terminated prior to the Expiration Date, unless this Agreement is terminated in accordance with Article X.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied, or waived by Parent and Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one or more periods of not more than 20 Business Days each (the length of such periods to be determined by Parent) or such other number of Business Days as the parties may agree (subject to the right of Acquisition Sub to waive any Offer Condition (other than the Minimum Condition) in accordance with this Agreement and the parties’ respective rights to terminate this Agreement in accordance with Article X of this Agreement); and
(ii) Acquisition Sub shall extend, and Parent shall cause Acquisition Sub to extend, the Offer for the minimum period required by Applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff.
(f) Without limiting the other provisions of this Agreement, if at any time during the period between the date of such commencementthis Agreement and the time when Acquisition Sub accepts, for the first time, for payment Shares validly tendered and not properly withdrawn pursuant to the Offer (the “Offer Commencement DateAcceptance Time”), any change in the outstanding shares of capital stock of the Company shall occur by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the Offer Price shall be equitably adjusted to reflect such reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or stock dividend thereon.
(iig) filed In the event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on behalf of Acquisition Sub to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(h) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Acquisition Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, will contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement (collectivelyii) cause the Offer to Purchase and related documents to be disseminated to holders of Shares. Parent and Acquisition Sub agree that they shall cause the Schedule TO and all exhibits, together with any amendments or supplements thereto, thereto (which together constitute the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required filed by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger either Parent or Acquisition Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right SEC to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, comply in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance material respects with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” Act and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”)rules and regulations thereunder and other Applicable Law. The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Acquisition Sub and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their Parent further agrees to use all reasonable best efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsApplicable Law. The Company shall promptly furnish or otherwise make available to Parent and Acquisition Sub or Parent’s legal counsel all information concerning the Acquired Companies and the Company’s stockholders that may be required in connection with any action contemplated by this Section 2.01(h) including communicating the Offer to the record and beneficial holders of the Shares. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, SEC and Parent and Merger Acquisition Sub shall give reasonable and agree to consider in good faith consideration to any comments made by the Company and its counselsuch comments. Parent and Merger Acquisition Sub shall agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Acquisition Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Acquisition Sub shall respond promptly to those any comments and of the SEC or its staff with respect to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub the Offer Documents or their counsel in any discussions or meetings with the SECOffer.
(gi) Parent shall cause to be provided to Merger Acquisition Sub on a timely basis all of the funds necessary to purchase any Company Shares that Merger Acquisition Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to the date Provided that this Agreement shall not have been terminated in accordance with its terms and none of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I A hereto shall have occurred or be continuing, Parent shall cause Merger Sub to, and Merger Sub shall, commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five (5) Business Days after the date hereof. The obligation of Merger Sub to accept for payment Shares tendered pursuant to the Offer shall be subject to (i) the condition that at least the number of Shares that when added to Shares already owned by Parent and its direct and indirect wholly owned Subsidiaries, if any, shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of any outstanding options or warrants which are vested as of the date hereof or are capable of vesting during the ninety (90) day period following the consummation of the Offer and have an exercise price of $10.00 per Share or less) shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the “Offer Conditions”)"Minimum Condition") and (ii) there shall not have occurred or be continuing any of the conditions set forth in Annex A hereto. Merger Sub Parent expressly reserves the right to waive any of such condition, to increase the Offer Conditions Per Share Amount, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided thatprovided, however, that no change may be made by Parent without the prior written consent of the Company, Merger Sub shall not:
Company which (iA) waive decreases the Per Share Amount or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid payable in the Offer;
, (ivB) decrease waives the Minimum Condition, (C) reduces the maximum number of Company Shares sought to be purchased in the Offer;
, (vD) impose additional Offer Conditions or other requirements imposes conditions to the Offer;
Offer in addition to those set forth in Annex A hereto or (viE) otherwise amend, modify or supplement amends any of the Offer Conditions or terms term of the Offer in a any other manner that adversely affects, or could reasonably be expected materially adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, Merger Sub shall have the right to (i) extend the Offer beyond the scheduled expiration date, which shall be twenty (i20) from time to time Business Days following the commencement of the Offer, if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) Merger Sub's obligation to accept for payment Shares shall not have been be satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the "SEC"), or the staff thereof thereof, applicable to the Offer Offer, or any period otherwise required by applicable Legal Requirement. If any of (iii) extend the Offer Conditions is for an aggregate period of not satisfied more than ten (10) Business Days beyond the latest applicable date that would otherwise be permitted under clause (i) or waived on any scheduled expiration date (ii) of the Offer, Merger Sub shall extend the Offerthis sentence, if, in as of such date, all of the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected conditions to be satisfied, from time Merger Sub's obligations to time until such Offer Condition or Offer Conditions accept for payment Shares are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend but the Offer beyond the earlier number of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer totals less than ninety percent (90%) of the issued and (ii) all Company outstanding Shares validly tendered on a fully diluted basis. The Per Share Amount shall, subject to any applicable withholding of Taxes, be net to the sellers of the Shares in cash, upon the Subsequent Offering Period (terms and subject to the time at which Company Shares are first accepted conditions of the Offer. Subject to the terms and conditions of the Offer and this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share for all Shares validly tendered and not properly withdrawn pursuant as promptly as practicable following satisfaction of the Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the Offer applicable rules of the SEC and the terms and conditions of the Offer, Merger Sub expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Laws. Any such delay shall be subject only effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If the payment equal to the satisfactionPer Share Amount in cash is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of such amount to a Person other than the registered holder of the certificate surrendered, or waiver (shall have established to the extent permitted hereunder) by Parent or Merger Sub, satisfaction of each of the Offer Conditions.
(e) Merger Sub shall that such Taxes either have been paid or are not terminate the Offer prior to any scheduled expiration date without the prior written consent of the Company except in the event that applicable. If this Agreement is terminated in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (Parent or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Company, Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to performto, on a timely basisand Merger Sub shall, all of Merger Sub’s obligations under this Agreementterminate promptly the Offer.
Appears in 1 contract
The Offer. (a) Prior At all times prior to the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any end of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided thatCertain Funds Period, without the prior written consent of the Company, Merger Sub shall notTUC shall:
(i) waive cause Bidco, until the earlier of the date the Offer lapses or change is finally closed, to comply in all material respects with the Minimum Condition City Code, the Financial Services ▇▇▇ ▇▇▇▇ (as defined UK) and the Companies Act and all other applicable laws and regulations relevant in Annex I)the context of the Offer;
(ii) decrease cause Bidco to provide the Administrative Agent with such information regarding the progress of the Offer Priceas it may reasonably request and, provided no breach of the City Code would result, all material written advice given to it in respect of the Offer;
(iii) change not cause or permit Bidco to declare the form Offer unconditional at a level of consideration 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 paid made by the terms of Rule 9 of the City Code in respect of the Target Shares;
(v) not cause or permit Bidco, without the prior consent of the Administrative Agent (acting on the instructions of the Required Lenders), to waive, amend or agree or decide not to enforce, in whole or in part, the conditions of the Offer set out in paragraph (c) (Referral) of Appendix 1 to the 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 (and the Borrowers acknowledge that the total indebtedness of the TEG Group requiring to be refinanced, 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 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;
(vii) cause Bidco to keep the Joint Lead Arrangers informed and consult with them as 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;
(ivB) decrease the number terms of Company Shares sought 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;
(vviii) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any within 15 days of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each acceptances of the Offer Conditions.are received from holders of not less than 90% of the Target Shares, procure that a director of Bidco issues a statutory declaration pursuant to section 429(4) of the 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 cause Bidco subsequently to purchase all such Target Shares; and
(eix) Merger Sub shall not terminate in any event give notice to close the Offer prior no less than 120 days after the Effective Date, unless the Required Lenders agree in their discretion to any scheduled expiration date without the prior written consent of the Company except in the event that this Agreement is terminated in accordance with its termsextend such period.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to the date of Provided that this AgreementAgreement shall not have been terminated in accordance with Section 11.01 and nothing shall have occurred that, Merger Sub (i) commenced had the Offer (the date of such commencementbeen commenced, the “Offer Commencement Date”), (ii) filed with the SEC would give rise to a Tender Offer Statement on Schedule TO with respect right to terminate the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer pursuant to Purchase and a form any of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”), as promptly as practicable after the date hereof, and in no event later than five Business Days following the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer on behalf of Parent. The Offer shall be subject to the Offer Conditions. The date on which Merger Sub commences the Offer is referred to as the “Offer Commencement Date”.
(a) Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change decrease the Minimum Condition (as defined Offer Price other than in Annex I)the manner required by Section 3.11;
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iviii) decrease the number of Company Shares sought to be purchased in the Offer;
(iv) extend or otherwise change the expiration date of the Offer except as otherwise provided herein;
(v) impose additional Offer Conditions increase or other requirements decrease the percentage of Shares required to meet the Offer;80% Minimum Condition above or below 80%; or
(vi) otherwise amend, modify or supplement any of the Offer Conditions or other terms of the Offer in a any manner that adversely affects, broadens such conditions or could reasonably be expected is otherwise adverse to adversely affect, the holders of the Company Shares; or
. For the avoidance of doubt, the parties acknowledge and agree that, upon the mutual agreement of Merger Sub and the Company, Merger Sub may amend or waive the 80% Minimum Condition (viiexcept for any amendment having the effect of increasing the percentage of Shares required to meet the 80% Minimum Condition above 80%) extend or otherwise change the expiration date of and close the Offer in a manner other than as contemplated by this Agreementeven if insufficient Shares have been tendered to meet the 80% Minimum Condition.
(cb) Unless extended pursuant to and in accordance with the terms of this Agreement, the The Offer shall expire at midnight 11:59 p.m. (New York City time) on the twentieth date that is 20 Business Day Days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (the “Expiration Date. Notwithstanding ”), unless the foregoing, without period of time for which the consent of the Company, Merger Sub Offer is open shall have been extended pursuant to, and in accordance with, the right to extend provisions of this Section (in which event the Offer (i) from term “Expiration Date” shall mean the earliest time to time if, at the scheduled or extended expiration and date of that the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesextended, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenexpire), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior Barrick shall promptly publicly announce its intention to amend the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Original Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject 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 this Agreement 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 satisfaction or waiver (if permitted hereunder"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 Conditions, Merger Sub shall, and Parent shall cause it to, consummate 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 its terms the Securities Act (Ontario) and accept for payment regulations thereunder and pay forall other applicable securities laws, as promptly as practicable (i) after including the expiration applicable securities laws of the Offer United States, (regardless collectively, "Applicable Securities Laws") to each registered holder of Subsequent Offering PeriodsShares 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, all Company Shares validly tendered and however, that if the mailing of the Notice of Variation is delayed by reason of Placer Dome not withdrawn pursuant having provided to Barrick the Offer and (iiDirectors' Circular referred to in Section 2.1(h)(vi) all Company Shares validly tendered 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 Subsequent Offering Period (preparation of the time at which Company Shares are first accepted for payment under Notice of Variation as may be reasonably requested by Barrick in order that the OfferNotice of Variation comply in all material respects with Applicable Securities Laws, then the “Acceptance Time” and Latest Mailing Time shall be extended to 11:59 p.m. on the fifth business day following the date on which Company Shares are first accepted for payment under the OfferPlacer Dome supplies such necessary documents, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, information or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditionsother assistance.
(ec) Merger Sub shall not terminate Prior to the Offer prior to any scheduled expiration date without the prior written consent printing of the Company except in the event that this Agreement is terminated in accordance with its terms.
(f) Each Notice of ParentVariation, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information Barrick shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company provide Placer Dome and its counsel shall be given with a reasonable opportunity to review and comment on any change 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 TO A hereto shall have been satisfied or waived, Barrick shall take up and pay for all of the Shares tendered under the Offer Documents each promptly and in any event no later than two business days following the time before any at which it becomes entitled to take up such document is filed 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 SEC20th day following the Latest Mailing Time, and Parent and Merger Sub shall give reasonable and good faith consideration subject to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive right of Barrick to extend from time to time from the SEC or its staff with respect 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 Schedule TO 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 Documents promptly after receipt is made, change the form of those comments consideration payable under the Offer (other than to increase the total consideration per Share and/or add additional consideration) or other communications and otherwise vary the Offer or any terms or conditions thereof (ii) a reasonable opportunity which for greater certainty, subject to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenSection 2.1(g), including by participating with Parent and Merger Sub or their counsel does not include a waiver of a condition) in any discussions or meetings with a manner which is adverse to the SECShareholders.
(g) Parent Barrick may waive the Minimum Tender Condition only if: (i) there shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase have been validly deposited pursuant to the Offer, Offer and shall cause Merger Sub to perform, not withdrawn at the Expiry Time that number of Shares which constitutes at least 60% of the Shares outstanding calculated on a timely 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 Merger Sub’s obligations 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 concert with Barrick) shall have occurred that would render it impossible for one or more of the conditions set out on Schedule A hereto to be satisfied;
(iv) assurances satisfactory to Barrick, acting reasonably, shall have been received by Barrick that all waivers, rulings or orders necessary for Barrick to amend the Original Offer and to mail to the 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 shall 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 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 covenants in this Agreement;
(viii) all representations and warranties of Placer Dome set forth in this Agreement shall be true and correct in all material respects at the time of the making of the amended Offer; and
(ix) no cease trade order, injunction or other prohibition at Law shall exist against Barrick making the Offer or taking up or paying for Shares deposited under the Offer. Prior to printing the Directors' Circular, Placer Dome shall provide Barrick with a reasonable opportunity to review and 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 written fairness opinion of each of CIBC World Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇, Sachs & Co. referred to below.
Appears in 1 contract
Sources: Support Agreement (Placer Dome Inc)
The Offer. (a) Prior Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, as promptly as reasonably practicable and in any event on or prior to the date of this AgreementJanuary 8, Merger Sub 2008, Parent (i) commenced shall cause Merger Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all of the outstanding Shares at the Offer Price; and (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 date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused ). The Company hereby consents to the inclusion in the Offer Documents to be disseminated to holders of the Company Shares Recommendation (as hereinafter defined) until such Company Recommendation is withdrawn, modified or amended to the extent required permitted by applicable federal securities laws.
(b) Section 6.3(d). Parent shall cause Merger Sub to consummate the Offer subject to the terms and conditions thereof. The obligation of Merger Sub to accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer is will be subject only to the satisfaction or waiver of the conditions set forth in Annex I hereto (the “Tender Offer Conditions”). .
(b) Parent, on behalf of Merger Sub Sub, expressly reserves the right from time to time, subject to Section 1.1(c), to waive any of the Tender Offer Conditions and (other than the Minimum Condition (as defined in Annex I hereto)) or to increase the Offer Price or to make any change other changes in the terms and conditions of or conditions to the Offer; provided that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) not decrease the Offer Price;
(iii) , change the form of consideration to be paid payable in the Offer;
(iv) , decrease the number of Company Shares sought to be purchased in the Offer;
(v) , impose additional Offer Conditions or other requirements conditions to the Offer;
(vi) otherwise amend, modify or supplement any of reduce the time period during which the Offer Conditions shall remain open or, except for any extension required or terms permitted pursuant to Section 1.1(d) and except as may be required by any Governmental Entity (after consultation with the Company concerning any such requirement), amend any other term of the Offer in a any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; or
(vii) extend Shares or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreementwhich would delay consummation of the Offer.
(c) Unless extended pursuant to The Offer shall remain open until the date that is twenty (20) business days (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) after (and in accordance with including the terms day of) the commencement of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement “Expiration Date. Notwithstanding the foregoing”), without the consent of the Company, unless Merger Sub shall have extended the right to extend period of time for which the Offer (iis open pursuant to, and in accordance with, Section 1.1(d) from or as may be required by applicable Laws, in which event the term “Expiration Date” shall mean the latest time to time if, at the scheduled or extended expiration and date of as the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waivedas so extended, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rulemay expire; provided, regulationhowever, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, that Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, may provide a subsequent offering period (“Subsequent Offering Period”) after the Expiration Date, in accordance with Rule 14d-11 of under the Exchange Act.
(d) If at any Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Merger Sub, Merger Sub shall extend the Offer from time to time for periods of not more than five (5) business days each until the End Date (as hereinafter defined) (as long as there shall have occurred no Change of Recommendation (as hereinafter defined)) until the earlier of (x) the date on which all of the Tender Offer Conditions are satisfied or waived or (y) the date on which this Agreement is terminated in accordance with Article VIII hereof. Notwithstanding the foregoing, Merger Sub and Parent may, without receiving the consent of the Company, (i) extend the Expiration Date for any period required by the applicable rules and regulations of the SEC, the NASDAQ or any other stock exchange or automated quotation system applicable to the Offer or (ii) extend the Offer from time to time for one or more periods of not more than five (5) business days each until the End Date if at any Expiration Date any of the Tender Offer Conditions have not been satisfied or duly waived. If the Acceptance Date (as hereinafter defined) occurs but Parent does not acquire a number of Shares sufficient to enable a merger to occur without a meeting of stockholders of the Company in accordance with Section 253 of the Delaware General Corporation Law (the “DGCL”), Merger Sub may elect to provide a subsequent offering period for the Offer; provided that Merger Sub shall, and Parent shall cause Merger Sub to, immediately accept and promptly pay for all Shares tendered during each such subsequent offering period, in each case in accordance with Rule 14d-11 under the Exchange Act.
(e) Subject to the terms of the Offer and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of all the Tender Offer Conditions as of the Offer ConditionsExpiration Date, Merger Sub shall, and Parent shall cause it Merger Sub to, consummate as soon as possible after the scheduled expiration of the Offer (as it may be extended in accordance with its terms and Section 1.1(d)), accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), for all Company Shares validly tendered and not validly withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the date of acceptance for payment, the “Acceptance Date” and the time at which Company Shares are first accepted of acceptance for payment under on the OfferAcceptance Date, the “Acceptance Time” ”) and promptly pay for such Shares. Parent shall or shall cause Merger Sub to provide or cause to be provided to the date Paying Agent on which Company a timely basis the funds necessary to purchase any Shares are first that Merger Sub becomes obligated to purchase pursuant to the Offer. For the avoidance of doubt, Merger Sub shall pay for any Shares accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay in the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub shall not terminate the Offer prior to any scheduled expiration date without as promptly as practicable. Without the prior written consent of the Company except Company, Merger Sub shall not accept for payment or pay for any Shares in the event that this Agreement is terminated in accordance with its termsOffer if, as a result, Merger Sub would acquire less than the number of Shares necessary to satisfy the Minimum Condition.
(f) Each of The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents (including any amendment thereto) prior to the filing thereof with the SEC. Parent shall provide the Company and its counsel with any comments that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Parent and Merger Sub agree to respond promptly to any comments or questions of the SEC or its staff with respect to the Offer Documents or the Offer.
(g) Each of Parent and Merger Sub, on the one hand, and the Company Company, on the other hand, agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. Parent , and Merger Sub have used, and shall use, their reasonable best efforts further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECLaws.
(gh) Parent shall cause to be provided to Merger Sub all If, between the date of this Agreement and the funds necessary to purchase date on which any Company Shares that Merger Sub becomes obligated to purchase particular Share is accepted for payment and paid for pursuant to the Offer, the outstanding Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price applicable to such Share shall be appropriately and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreementproportionately adjusted.
Appears in 1 contract
Sources: Merger Agreement (Respironics Inc)
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Section 10.01, as promptly as practicable after the date hereof, but in no event later than 15 Business Days following the date of this Agreement, Merger Sub Purchaser and Parent shall commence (iwithin the meaning of Rule 14d-2 under the 1934 Act) commenced the Offer. Parent and the Company shall coordinate on determining the Offer Commencement Date pursuant to the foregoing to be a date such that the Company is in a position to file the Schedule 14D-9 and the Company Schedule 13E-3 on the Offer Commencement Date, concurrently with the filing of the Schedule TO and the Parent Schedule 13E-3 by Parent and Purchaser. The Offer shall be subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). The date of such commencement, on which Purchaser and Parent commences the Offer is referred to as the “Offer Commencement Date”.
(b) Purchaser reserves the right to waive any of the Offer Conditions (other than the Unaffiliated Tender Condition and the Termination Condition, each of which is nonwaivable) and to make any change in the terms of or conditions to the Offer in its sole discretion; provided that, without the prior written consent of the Company as authorized by the Company Special Committee, Purchaser shall not:
(i) decrease the Offer Price;
(ii) change the form of consideration to be paid in the Offer;
(iii) decrease the number of Shares sought in the Offer;
(iv) extend or otherwise change the expiration date of the Offer except as otherwise provided herein;
(v) impose conditions to the Offer in addition to the Offer Conditions;
(vi) provide any “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 of the 1934 Act (“Subsequent Offering Period”); or
(vii) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner materially adverse to, or that would reasonably be expected to be materially adverse to, the Unaffiliated Public Stockholders in their capacities as such. For the avoidance of doubt, in no event will the Offer be consummated unless the Unaffiliated Tender Condition and the Termination Condition shall have been satisfied.
(c) Unless extended as provided in this Agreement, the Offer shall initially expire one minute after 11:59 p.m. Eastern Time on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 1934 Act) (the “Initial Expiration Date,” and such time or such subsequent time to which the expiration of the Offer is extended in accordance with the terms of this Agreement, the “Expiration Date”) after the Offer Commencement Date. Provided that this Agreement shall not have been terminated in accordance with Section 10.01, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer (1) from time to time, if any of the Offer Conditions is not satisfied or waived (to the extent waivable) on any scheduled Expiration Date of the Offer, until such Offer Condition or Offer Conditions are satisfied or waived (to the extent waivable) and (2) for the minimum period required by any Applicable Law or the rules and regulations of the SEC or as is necessary to resolve any comments issued by the SEC or its staff applicable to the Offer, the Schedule TO, or the Offer Documents, the Parent Schedule 13E-3, the Schedule 14D-9 or the Company Schedule 13E-3; provided that, in each case, (i) Purchaser shall not be required to extend the Offer (x) beyond the earlier of (1) the End Date and (2) the valid termination of this Agreement (such earlier time of the immediately preceding clauses (1) and (2), the “Extension Deadline”) or (y) on more than one occasion (for such period as requested by the Company, but not more than ten Business Days) if, as of such Expiration Date, (1) there are no unresolved comments from the SEC on any of the Schedule TO, the Offer Documents, the Parent Schedule 13E-3, the Schedule 14D-9 or the Company Schedule 13E-3 and (2) all of the Offer Conditions (other than the Unaffiliated Tender Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, waived by Purchaser, provided further that, solely in the case of this clause (y)(2), and subject to this Agreement not having been terminated in accordance with Section 10.01, Purchaser may, in its sole discretion, extend the Offer to permit such Offer Conditions to be satisfied, (ii) Purchaser shall not be permitted to extend the Offer beyond the Extension Deadline without the prior written consent of the Company as authorized by the Company Special Committee and (iii) no such individual extension of the Offer shall be for a period of more than ten Business Days (except for such longer period as the parties hereto may mutually agree). Purchaser shall not terminate the Offer unless this Agreement shall have been validly terminated pursuant to Section 10.01. In the event that this Agreement is validly terminated pursuant to Section 10.01, Purchaser shall, and Parent shall cause it to, promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on behalf of Purchaser to return, in accordance with Applicable Law, all Shares tendered to the registered holders thereof.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Purchaser shall, and Parent shall cause it to, promptly (within the meaning of Rule 14e-1(c) of the 1934 Act) (i) after the Expiration Date, accept for payment (the date and time at which Shares are first accepted for payment under the Offer, the “Acceptance Date”), and (ii) after the Acceptance Date, pay for, all Shares validly tendered and not validly withdrawn pursuant to the Offer. As soon as practicable on or after the Acceptance Date, and prior to consummation of the Merger, Parent shall take all necessary and appropriate action to cause any Shares owned by Parent or any Subsidiary of Parent (other than Purchaser, the Company or any Subsidiary of the Company) to be transferred to (and registered in the name of) Purchaser.
(e) On the Offer Commencement Date, Parent and Purchaser shall (i) file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included shall include the summary term sheet required thereby and, as exhibits, Purchaser’s offer to purchase the Shares pursuant to the Offer to Purchase and a form of letter of transmittal transmittal, notice of guaranteed delivery and summary advertisement (and appropriate ancillary documents) (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and a Rule 13e-3 Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto and including exhibits thereto, the “Parent Schedule 13E-3”) and (iii) caused that will contain or incorporate by reference the Offer Documents and (ii) cause the appropriate Offer Documents and Parent Schedule 13E-3 to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) . The Offer is subject only Company will furnish to Parent the information relating to the conditions Company required by the 1934 Act to be set forth in Annex I hereto the Offer Documents and the Parent Schedule 13E-3. Parent will furnish to the Company the information relating to Parent or Purchaser required by the 1934 Act to be set forth in the Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Offer ConditionsSchedule 14D-9”) and a Rule 13e-3 Transaction Statement on Schedule 13E-3 to be filed by the Company (together with any amendments, supplements and exhibits thereto, the “Company Schedule 13E-3”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub Purchaser and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and TO, the Offer Documents and the Parent Schedule 13E-3 if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and Purchaser shall use, use their commercially reasonable best efforts to cause the Schedule TO and the Parent Schedule 13E-3 as so corrected to be filed with the SEC and the appropriate Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and TO, the Offer Documents and the Parent Schedule 13E-3 each time before any such document is filed with the SEC, and Parent and Merger Sub Purchaser shall give reasonable and consider in good faith consideration to any the comments made by the Company and its counsel. Parent and Merger Sub Purchaser shall (i) as promptly as practicable after the receipt of any comments or requests for additional information from the SEC with respect to the Schedule TO, the Offer Documents or the Parent Schedule 13E-3, provide the Company and its counsel with (i) copies of any comments written comments, and advise the Company and its counsel of any material or other communicationssubstantive oral comments, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time including any request from the SEC for amendments or its staff supplements to the Schedule TO, the Offer Documents or the Parent Schedule 13E-3, and shall provide the Company with copies of all material or substantive correspondence between Parent, Purchaser and their Representatives, on the one hand, and the SEC, on the other hand, with respect to the Offer, the Schedule TO or TO, the Offer Documents promptly after receipt of those comments or other communications the Parent Schedule 13E-3, and (ii) provide the Company a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel Purchaser in any discussions material or meetings substantive meeting or discussion with the SECSEC in respect of the Offer, the Schedule TO, the Offer Documents or Schedule 13E-3.
(gf) Parent shall cause If the payment of the Offer Price is to be provided made to Merger Sub all a Person other than the Person in whose name the tendered Shares are registered on the stock transfer books of the funds necessary Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Offer Price to purchase any Company a Person other than the registered holder of the Shares that Merger Sub becomes obligated to purchase pursuant tendered, or shall have established to the Offersatisfaction of Purchaser that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations other similar Taxes described in this Section 2.01(f) under this Agreementany circumstance.
Appears in 1 contract
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, as promptly as practicable after the date of this Agreementhereof (but in no event later than the seventh (7th) Business Day after the date hereof), Merger Sub shall commence (i) commenced within the meaning of Rule 14d-2 under the Exchange Act), and Parent shall cause Merger Sub to commence, the Offer to purchase all of the issued and outstanding Shares at a price per Share in cash equal to $17.75 (such amount to be paid for each Share, as it may be amended from time to time in accordance with the date of such commencementterms hereof, the “Offer Commencement DatePrice”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect net to the Offer (together with all amendments seller, without interest and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet less any taxes required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders withheld as described in Section 3.04. The Company agrees that no Shares owned by the Company or any of Company Shares its Subsidiaries will be tendered pursuant to the extent required by applicable federal securities lawsOffer.
(b) The obligations of Merger Sub, and of Parent to cause Merger Sub, to accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer is on or prior to the Expiration Date (the “Tendered Shares”) shall be subject only to (i) the satisfaction of the minimum condition set forth in clause (i) of Annex III hereto (such condition, the “Minimum Condition”) and (ii) the satisfaction or waiver by Parent or Merger Sub of the other conditions set forth in Annex I III hereto (such conditions, together with the Minimum Condition, the “Offer Conditions”)) and the terms and conditions hereof. The Offer Conditions are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion, other than the Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company, in each case on the terms and subject to the conditions of this Agreement and the applicable rules and regulations of the SEC. Parent and Merger Sub expressly reserves reserve the right to increase the Offer Price or to waive any or to modify the terms or conditions of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided , except that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not:
make any change to the terms or conditions of the Offer that (i) waive or change reduces the Minimum Condition (as defined in Annex I);
Offer Price, (ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid payable in the Offer;
, (iii) reduces the number of Shares sought to be purchased by Merger Sub in the Offer, (iv) decrease waive or amend the number of Company Shares sought in the Offer;
Minimum Condition, (v) impose additional add to the Offer Conditions or impose any other requirements conditions to the Offer;
, (vi) extend the expiration of the Offer except as required or permitted in Section 1.01 of this Agreement, or (vii) otherwise amend, modify or supplement any Offer Condition or any term of the Offer Conditions or terms of the Offer set forth in this Agreement, in each case in a manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; or
(vii) extend . Parent and Merger Sub shall not abandon or otherwise change terminate the Offer prior to any expiration date without the prior written consent of the Offer Company except in a manner other than as contemplated by the event that this AgreementAgreement is validly terminated pursuant to Article VIII.
(c) Unless Subject to the terms and conditions of this Agreement and the Offer, the initial expiration date for the Offer shall be midnight, New York City time, on the date that is twenty (20) Business Days from and after the date the Offer is commenced, as determined in accordance with Rule 14d-1(g)(3) of the Exchange Act (such initial expiration date as it may be extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement “Expiration Table of Contents Date”). Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall, and Parent shall have the right to cause it to, extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or the Nasdaq that is applicable to the Offer or any period otherwise required by applicable Legal RequirementOffer. If any Merger Sub may without the consent of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, Company (in each casecase unless this Agreement has been terminated pursuant to Article VIII), (i) Merger Sub shall not be required to extend the Offer beyond for one or more consecutive increments of not more than ten (10) Business Days each, if at the earlier then-scheduled Expiration Date any Offer Condition has not been satisfied or waived (the length of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are such period to be satisfied at the expiration of the Offerdetermined by Parent and Merger Sub) have been satisfied or, to the extent permissible, have been waived by Merger Sub and and/or (ii) no such individual extension of the Offer shall be for make available a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 of under the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction . If at any then-scheduled Expiration Date any Offer Condition has not been satisfied or waiver (if permitted hereunder) of the Offer Conditionswaived, Merger Sub shall, and Parent shall cause it to (in each case unless this Agreement has been terminated pursuant to Article VIII), extend the Offer on one or more occasions at the request of the Company for successive periods of not more than twenty (20) Business Days (the length of such period to be determined by Parent and Merger Sub) until the earlier to occur of (A) the termination of this Agreement pursuant to Article VIII and (B) September 30, 2013. Nothing in this Section 1.01(c) shall (i) impose any obligation on Merger Sub to extend the Offer beyond September 30, 2013, or (ii) 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 VIII.
(d) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Merger Sub shall, and Parent shall cause Merger Sub to, consummate on the terms set forth in this Agreement and subject only to the prior satisfaction or waiver of the Offer in accordance with its terms and Conditions (provided, however, that the Minimum Condition may not be waived without the written consent of the Company), accept for payment and pay for, for all Tendered Shares as promptly soon as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Expiration Date”). The obligation of If Merger Sub (makes available a “subsequent offering period” in accordance with Section 1.01(c) hereof, Merger Sub shall, and of Parent to shall cause Merger Sub) Sub to accept for payment, payment and pay the Offer Price for, each Company Share for all Shares that are validly tendered and not properly withdrawn pursuant to during such “subsequent offering period” promptly (within the Offer shall be subject only to meaning of Rule 14d-11 under the satisfaction, or waiver (to the extent permitted hereunderExchange Act) by Parent or Merger Sub, of each of the Offer Conditionsafter any Shares are validly tendered during such “subsequent offering period.”
(e) On the date of commencement of the Offer, Parent and Merger Sub shall not terminate file with the SEC in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain the Offer prior to Purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any scheduled expiration date without supplements or amendments thereto and including the prior written consent exhibits thereto, the “Offer Documents”), and cause the Offer Documents to be disseminated to the shareholders of the Company except as and to the extent required by United States federal securities Laws and the rules and regulations of the SEC promulgated thereunder (the “Federal Securities Laws”). Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the event that this Agreement is terminated Federal Securities Laws. Parent and Merger Sub shall deliver copies of the proposed forms of the Offer Documents (including any amendments or supplements thereto) to the Company within a reasonable time prior to the dissemination or filing thereof for review and comment by the Company and its counsel, and shall consider in accordance with its terms.
(f) good faith any comments of the Company. Each of Parent, Merger Sub and the Company agrees shall respond promptly to any comments of the SEC or its staff with respect to the Offer or the Offer Documents and promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect or as otherwise required by the Federal Securities Laws. Parent and Merger Sub have used, shall amend or supplement the Offer Documents and shall use, their reasonable best efforts to cause the Schedule TO Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company the Federal Securities Laws and its counsel shall be given a reasonable opportunity to review and comment on any change subject to the Schedule TO terms and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counselconditions of this Agreement. Parent and Merger Sub shall provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications and (ii) shall give the Company a reasonable opportunity under the circumstances to participate review and comment on any proposed written or oral responses to such comments. The Company hereby consents to the inclusion in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all Offer Documents of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the OfferBoard Recommendation as it may be amended or modified, and shall cause Merger Sub to performuntil but not after it is withdrawn, on a timely basis, all of Merger Sub’s obligations under in each case as permitted by this Agreement.
Appears in 1 contract
The Offer. (a) Prior The Merger Agreement provides for the making of the Offer as provided in this Offer to Purchase. The Company Board of Directors. The Merger Agreement provides that Parent shall be entitled to designate a number of directors, rounded up to the date next whole number, of this Agreementthe Company Board of Directors equal to the product of the total number of directors on the Company Board of Directors (giving effect to the directors designated by Parent) multiplied by a fraction of which the numerator shall be the number of Shares which Parent and its subsidiaries (including Purchaser) beneficially own at that time, Merger Sub and the denominator shall be the total number of Shares then outstanding. The Directors so designated by Parent shall take office immediately after (i) commenced the Offer purchase of and payment for any Shares by Parent or any of its subsidiaries as a result of which Parent and its subsidiaries owns beneficially at least a majority of then outstanding Shares and (ii) compliance with Section 14(f) of the date Exchange Act and Rule 14f-1 promulgated thereunder, whichever shall occur later. In furtherance thereof, the Company shall, upon request of Parent, use its best efforts promptly either to increase the size of the Company Board of Directors or to secure the resignations of such commencementnumber of its incumbent directors, or both, as is necessary to enable such designees of Parent to be so elected or appointed to the Company Board of Directors, and the Company shall take all actions available to the Company to cause such designees of Parent to be so elected or appointed. At such time, the “Offer Commencement Date”)Company shall, if requested by Parent, also take all action necessary to cause persons designated by Parent to constitute the same percentage (rounded up to the next whole number) as is on the Company Board of Directors of (i) each committee of the Company Board of Directors, (ii) filed with each board of directors (or similar body) of each of the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) Company's subsidiaries and (iii) caused the Offer Documents to be disseminated to holders each committee (or similar body) of Company Shares to the extent required by applicable federal securities laws.
(b) each such board. The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner Agreement provides that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended will promptly take, at its expense, all actions required pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City timeSection 14(f) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject Act and Rule 14f-1 promulgated thereunder in order to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with fulfill its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment obligations under the Offerprior paragraph, including mailing to shareholders the “Acceptance Time” information required by such Section 14(f) and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent Rule 14f-1 as is necessary to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of enable Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected 's designees to be filed with the SEC and the Offer Documents as so corrected elected or appointed to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.the
Appears in 1 contract
Sources: Offer to Purchase (Fedders Corp /De)
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Article IX and provided that none of the date events set forth in Annex I hereto shall have occurred or be continuing, unless otherwise agreed by Parent and the Company, as soon as practicable after the public announcement of the execution of this Agreement, Parent shall cause Merger Sub (i) commenced to commence the Offer (to exchange all of the date outstanding shares of such commencement, Company Common Stock for the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect right to receive from Merger Sub pursuant to the Offer 0.3333 fully paid and nonassessable shares of Parent Common Stock for each share of Company Common Stock (together the "Exchange Ratio"). The Offer shall be subject only to (1) the condition that there shall be validly tendered in accordance with all amendments the terms of the Offer, prior to the expiration of the Offer, and supplements thereto and including exhibits theretonot withdrawn, at least a number of shares of Company Common Stock that represents a majority of the “Schedule TO”) that included shares of Company Common Stock outstanding on a Fully Diluted Basis (the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”"Minimum Condition") and (iii2) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the other conditions set forth in Annex I hereto (the “Offer Conditions”)hereto. Merger Sub expressly reserves the right to waive any of the conditions to 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, Merger Sub shall not:
(i) waive or that no change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change may be made that changes the form of consideration to be paid payable in the Offer;
(iv) decrease , decreases the number of Company Shares sought consideration payable in the Offer;
(v) impose additional Offer Conditions or other requirements , reduces the maximum number of shares of Company Common Stock to be purchased in the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of imposes conditions to the Offer in a manner that adversely affects, addition to those set forth in Annex I or could reasonably be expected makes any other change which is adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement DateCommon Stock. Notwithstanding the foregoing, and subject to Section 10.01(d), without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time beyond the scheduled expiration date, which shall initially be 20 business days following the commencement of the Offer (the "Initial Expiration Date"), if, at the scheduled Initial Expiration Date or extended expiration date of the Offerany extension thereof, any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions conditions are satisfied or waived (if permitted hereunder) and waived, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any law or (iii) 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 the Offer Conditions is not have been satisfied or waived waived, but the number of shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer equals more than 50%, but less than 90%, of the outstanding shares of Company Common Stock on any a Fully Diluted Basis. In the event that Merger Sub is unable to consummate the Offer on the Initial Expiration Date due to the failure of the Minimum Condition to be satisfied, Parent shall cause Merger Sub to, unless this Agreement is terminated pursuant to Article X, extend the Offer on one or more occasions and set subsequent scheduled expiration date dates until the Minimum Condition has been satisfied; provided, however, that nothing contained herein shall require Parent to cause Merger Sub to extend the Offer for more than, in the aggregate, 15 business days after the Initial Expiration Date. Subject to the foregoing and upon the terms and subject to the conditions of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and Merger Sub to accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods)Offer, all shares of Company Shares Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) As soon as reasonably practicable on the date of commencement of the Offer, Parent shall, and Parent shall cause Merger Sub to, file with the SEC (i) a Tender Offer Statement on Schedule TO (together with any amendments or supplements thereto, the "Schedule TO") relating to the Offer and (ii) all Company Shares validly tendered in a registration statement on Form S-4 to register the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” offer and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and sale of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn Common Stock pursuant to the Offer shall be subject only to (the satisfaction"Offer Registration Statement"). The Offer Registration Statement will include a prospectus containing the information required under Rule 14d-4(b) under the Exchange Act (together, or waiver (to the extent permitted hereunder) by Parent or Merger SubSchedule TO, of each of the Offer Conditions.
(e) Merger Sub shall not terminate Registration Statement and such documents included therein pursuant to which the Offer prior to will be made, together with any scheduled expiration date without amendments and supplements thereto, the prior written consent "Offer Documents"). Each of the Company except in and Parent shall use their reasonable efforts to have the event that this Agreement is terminated in accordance Offer Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof with its terms.
(f) the SEC and to keep the Offer Registration Statement effective as long as necessary to complete the Offer. Each of Parent, Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respectrespect and to supplement the Offer Documents to include any information that shall become necessary to include in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent shall, and Parent shall cause Merger Sub have usedto, and shall use, their reasonable best efforts take all steps necessary to cause the Schedule TO and the Offer Registration Statement as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be be, at such time as reasonably agreed by Parent and the Company, disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SECSEC or disseminated to the holders of shares of Company Common Stock. Parent shall, and Parent and shall cause Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall to, provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Parent and Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications and (ii) a reasonable shall provide the Company and its counsel an opportunity to participate in the response of Parent and or Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECsuch comments.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior Provided, that this Agreement shall not have terminated in accordance with its terms and subject to there being no order, decree, judgment, injunction or ruling 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 no later than ten (10) business days, after the date of this Agreement. Following such launch, Merger Sub (i) commenced each of Parent and Purchaser shall use its reasonable best efforts to consummate the Offer (the date of such commencementOffer, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect subject to the Offer (together with all amendments terms and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawsconditions hereof.
(b) The Offer is subject only obligation of Purchaser to accept for payment, purchase and pay for any Company Shares validly 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 that number of Company Shares validly tendered and not withdrawn and received by the depositary of the Offer prior to the Expiration Time of the Offer (other than Company Shares tendered by guaranteed delivery that have not yet been “received,” within the meaning of Section 251(h) of the DGCL, by the depositary of the Offer), when added to any Company Shares already owned by Parent or any of its controlled subsidiaries, if any, equal a majority of the outstanding Company Shares as of the Expiration Time; and (y) the other conditions set forth in Annex I A hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Merger Sub 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 of such condition (other than the Offer Conditions Minimum Condition which may not be amended or waived), to increase the Per Share Amount payable in the Offer, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided thatprovided, that without the prior written consent of the Company, Merger Sub shall not:
Company no change may be made that (i) waive or change decreases the Minimum Condition Per Share Amount (except as defined provided in Annex ISection 2.1(i);
), (ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid payable in the Offer;
, (iii) imposes conditions to the Offer in addition to the Tender Offer Conditions, (iv) decrease decreases the number of Company Shares sought to be purchased in the Offer;
, (v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of extends the Offer Conditions or terms of the Offer other than in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this AgreementSection 2.1(d), the Offer shall expire at midnight or (New York City timevi) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled modifies or extended expiration date of the Offer, amends any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable condition to the Offer in any manner that broadens such conditions, makes such conditions more onerous or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, adverse to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension holders of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange ActCompany Shares.
(dc) Subject to the terms and conditions set forth in this Agreement and to thereof, the satisfaction or waiver Offer shall remain open until one minute after 11:59 p.m., New York City time (if permitted hereunder) the “Expiration Time”), at the end of the Offer Conditions, Merger Sub shall, twentieth (20th) business day beginning with (and Parent shall cause it to, consummate including) the date that the Offer is commenced (determined in accordance with its terms Rule 14d-1(g)(3) and accept Rule 14e-1(a) under the Exchange Act) (the “Expiration Date”), unless the period of time for payment which the Offer is open shall have been extended pursuant to, and pay forin 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 Time” shall mean the latest time, and the term “Expiration Date” shall mean the latest date, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesextended, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenexpire), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior Upon the terms and subject to the conditions of this Agreement (including Article VII), as promptly as reasonably practicable following the date hereof, but in any event no later than the tenth (10th) Business Day after the initial public announcement of the execution of this Agreement, Outerwall Merger Sub shall, and Parent shall cause Outerwall Merger Sub to, commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligations of Outerwall Merger Sub to, and of Parent to cause Outerwall Merger Sub to, accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Annex I (as they may be amended in accordance with this Agreement, the “Offer Conditions”).
(b) To the extent permitted by Law, Parent and Outerwall Merger Sub reserve the right, at any time, to waive, in whole or in part, any Offer Condition (other than the Minimum Condition), to increase the Offer Price or to modify the terms of the Offer; provided, however, that, without the prior written consent of the Company, neither Parent nor Outerwall Merger Sub shall (A) reduce the maximum number of shares of Common Stock sought to be purchased in the Offer, (B) reduce the Offer Price or change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Condition, (D) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (E) modify or amend any existing Offer Conditions in a manner that is adverse to the holders of Common Stock, (F) except as otherwise required or expressly permitted by Section 1.1(d), extend or otherwise change the Expiration Time, (G) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (H) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Common Stock or in any manner that materially delays or unreasonably interferes with, hinders or impairs the consummation of the Offer. Subject to Section 1.1(g), the Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is validly terminated in accordance with Article VII.
(c) The Offer shall initially expire at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the date that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Subject to Article VII, Outerwall Merger Sub may or shall, as applicable, extend the Offer from time to time as follows:
(i) for the minimum period as required by any applicable Law, including any rule, regulation, interpretation or position of the SEC, the staff thereof or the NASDAQ Global Select Market (the “Nasdaq”);
(ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (B) waived by Parent and Outerwall Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Outerwall Merger Sub shall, and Parent shall cause Outerwall Merger Sub to, extend the Offer on one or more occasions in consecutive periods of five (5) Business Days each (with each such period to end at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time), on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that Outerwall Merger Sub shall not be required to extend the Offer to a date later than the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 7.2(a)); provided, however, that if the sole then-unsatisfied Offer Condition is the Minimum Condition, Outerwall Merger Sub shall not be required to extend the Offer for more than four (4) occasions in consecutive periods of five (5) Business Days each (each such period to end at 11:59 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); or
(iii) if at any scheduled Expiration Time, (A) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Closing and/or the Closing (other than as a result of a breach by Parent, Outerwall Merger Sub or Redbox Merger Sub of any of their representations, warranties or covenants set forth in Section 4.7 or Section 5.11 of this Agreement) and (B) Parent, Outerwall Merger Sub and Redbox Merger Sub acknowledge and agree in writing that (1) the Company may terminate this Agreement pursuant to, and only in accordance with and upon the satisfaction of the requirements set forth in, Section 7.4(c)(ii) and receive the Parent Termination Fee pursuant to, and only in accordance with and upon the satisfaction of the requirements set forth in, Section 7.6(d)(i) and (2) solely with respect to both (x) any payment of the Parent Termination Fee in accordance with subclause (1) of this Section 1.1(d)(iii) and (y) Outerwall Merger Sub’s obligation, and Parent’s obligation to cause Outerwall Merger Sub, to consummate the Offer, including to accept and thereafter pay for all shares of Common Stock validly tendered and not validly withdrawn pursuant to the Offer and in accordance with this Section 1.1, all Offer Conditions set forth (I) in paragraphs (d)(iv) and (f) of Annex I and (II) other than in respect of any willful or material breach (including any Willful and Material Breach) following the date of delivery of such notice, in paragraph (e) of Annex I will be deemed to have been satisfied or waived at the Expiration Time of the Offer after giving effect to any extension pursuant to this Section 1.1(d)(iii) and, for the avoidance of doubt, only at such time, Outerwall Merger Sub shall have the right in its sole discretion to extend the Offer on up to four more occasions in consecutive periods of five (5) Business Days each (each such period to end at 11:59 p.m., New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); provided, that Outerwall Merger Sub shall not be permitted to extend the Offer to a date later than the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 7.2(a)). Outerwall Merger Sub shall not, and Parent shall not permit Outerwall Merger Sub to, extend the Offer in any manner except as required or permitted pursuant to this Section 1.1(d).
(e) On the terms and subject to the conditions of this Agreement, including satisfaction or waiver of all of the Offer Conditions, (i) at or as promptly as practicable following the Expiration Time, Outerwall Merger Sub shall, and Parent shall cause Outerwall Merger Sub to, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Outerwall Merger Sub shall, and Parent shall cause Outerwall Merger Sub to, pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer; provided, that with respect to shares of Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Outerwall Merger Sub shall be under no obligation to make any payment for such shares unless and until such shares are delivered in settlement or satisfaction of such guarantee. Parent shall provide or cause to be provided to Outerwall Merger Sub, at the Offer Acceptance Time, the funds that, when taken together with available cash of the Company and its Subsidiaries, are necessary to purchase any shares of Common Stock that Outerwall Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Outerwall Merger Sub to fulfill all of Outerwall Merger Sub’s obligations under this Agreement.
(f) The Offer Price payable in respect of each share of Common Stock shall be paid on the terms and subject to the conditions of this Agreement. The Company agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) Unless this Agreement is validly terminated pursuant to Article VII, neither Parent nor Outerwall Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company in its sole discretion. In the event this Agreement is validly terminated pursuant to Article VII, Outerwall Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Common Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Outerwall Merger Sub shall promptly return, or cause any depositary acting on behalf of Outerwall Merger Sub to promptly return, all tendered shares to the tendering stockholders in accordance with applicable Law.
(h) Subject to the obligations of the Company and its Subsidiaries pursuant to Section 5.1, the Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Common Stock occurring on or after the date of this AgreementAgreement and at or prior to the Offer Acceptance Time, Merger Sub and such adjustment to the Offer Price shall provide to the holders of shares of Common Stock the same economic effect as contemplated by this Agreement prior to such action.
(i) commenced the Offer (On the date of such commencementcommencement of the Offer, the “Offer Commencement Date”), (ii) filed Parent and Outerwall Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and), as exhibits, the Offer which shall contain or incorporate by reference an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement other appropriate ancillary offer documents (collectivelysuch Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”) ), and (iii) caused cause the Offer Documents to be disseminated to the holders of Company Shares the Common Stock as and to the extent required by applicable United States federal securities laws.
(b) . The Offer is subject only Company shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel upon request all information concerning the conditions set forth Company and its Subsidiaries that may be reasonably requested by Parent for inclusion in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement DateDocuments. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Outerwall Merger Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and each of Parent and Outerwall Merger Sub have used, shall take all steps necessary and shall use, their use all reasonable best efforts to promptly amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Sharesthe Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Parent and Outerwall Merger Sub shall promptly notify the Company and its counsel shall be given a reasonable opportunity to review and comment on upon the receipt of any change comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule TO Offer Documents, and shall promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents each time before any such document is filed with the SECSEC or dissemination thereof to the holders of the Common Stock, and Parent and Merger Sub shall give reasonable and good faith consideration or responding to any comments made by of the Company and its counsel. SEC with respect to the Offer Documents, Parent and Outerwall Merger Sub shall provide the Company and its counsel with (i) a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Outerwall Merger Sub shall give reasonable consideration to any such comments. In the event that Parent or Outerwall Merger Sub receives any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents Documents, each shall use its reasonable best efforts to respond as promptly after receipt of those comments or other communications and (ii) a reasonable opportunity as practicable to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECsuch comments.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Outerwall Inc)
The Offer. (a) Prior If a Purchase Election is made, Raleigh shall commence the Offer not later than the twentieth business day after the date on which Raleigh makes a Purchase Election pursuant to the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect Response Notice. Notwithstanding anything to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibitscontrary herein, the Offer to Purchase and a form shall comply in all material respects with the requirements of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”Sections 14(d) and (iii14(e) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions Securities Exchange Act of 1934, as amended, and to make any change in the terms of or conditions to the Offer; provided thatregulations thereunder ("Securities Exchange Act"), without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or all other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to applicable laws and in accordance with the terms of this Agreement, . The closing of the purchase and sale of the Interests tendered pursuant to the Offer (the "Offer Closing"), may be conditioned on only the following:
(i) since the making of the Purchase Election, no preliminary or permanent injunction or other order of any federal or state court, government or governmental authority or agency shall expire at midnight have been issued and shall remain in effect which (New York City timeA) 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 twentieth Business Day after ability of Raleigh effectively to exercise full rights of ownership of any Interests or the Offer Commencement Date. Notwithstanding GP Assets or to exercise its powers as general partner of the foregoingPartnership subsequent to the GP Assets Closing, including, without the consent of the Companylimitation, Merger Sub shall have the right to extend vote Interests on all matters properly presented to the Offer 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) from time to time ifabove and (B) if Raleigh is advised by its counsel that a filing under HSR (as defined in Section 10(b)) is required, at the scheduled applicable waiting period shall have expired or extended expiration date been terminated;
(iii) since the making of the OfferPurchase Election (A) no change or development shall have occurred and remain in effect in the business, any properties, assets, liabilities, financial condition, operations, or results of operations of the Offer Conditions (other than conditions Partnership which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied is or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could would reasonably be expected to be satisfiedmaterially adverse to the Partnership taken as a whole, from (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 time until such Offer Condition or Offer Conditions are satisfied or waivedthe purchase of the GP Assets; provided thatand
(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 casecase 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) prior to the expiration of the Offer (the date on which the Offer expires in accordance with this sentence, as the same may be extended in accordance with the proviso set forth below, the "Final Expiration Date"); provided, however, that Raleigh may extend the 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 be extended to the earliest practicable date on which the Offer may expire in accordance with the 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 Cooperation Period; (B) 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 the dissemination to Interestholders of additional offering materials prepared for the purpose of complying with comments by the staff of the Securities and Exchange Commission (the "Commission"), 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) Merger Sub shall not be required to extend will recommend the Offer beyond the earlier of (x) the End Date to Interestholders who need or want liquidity, and (yii) will remain neutral with respect to the Offer for all 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 that is 30 days after on which Raleigh makes a Purchase Election pursuant to the date that all 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 Conditions set forth in Section 4(a) (other than the Minimum Condition and those that by their nature are condition in Section 4(a)(iii)(C)) above not to be satisfied at satisfied. In addition, the expiration of 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) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension 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 shall be 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 a period the General Partner or any of more 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 five Business Daysthe 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), or (iv) the termination of this Agreement.
(d) In connection with the Offer, Raleigh with respect to the Raleigh Interests will consent to, and with respect to all Interests tendered in the Offer 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 would result in the termination of the Partnership under the applicable provisions of the Internal Revenue Code of 1986, as amended. Following expiration Subject to Raleigh complying in all material respects with the requirements of Section 4 in the conduct of the Offer, Merger Sub maythe General Partner will cooperate with Raleigh in giving effect to, and will consent to, any such waiver and amendment of the Partnership Agreement; provided, however, nothing herein shall be deemed to 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 Interests at a price in excess of the Offer price, Raleigh may elect, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 at any time such Competing Offer remains outstanding to sell all, but not less than all, of the Exchange Act.
Raleigh Interests (dand any Resolved Interests) Subject to the terms and conditions set forth in this Agreement and competing bidder pursuant to the satisfaction or waiver (if permitted hereunder) of Competing Offer. If the Offer ConditionsRaleigh Interests are sold pursuant to such Competing Offer, Merger Sub shall, and Parent Raleigh shall cause it to, be released from its obligation to consummate the Offer in accordance with its terms and accept for payment Raleigh and pay for, as promptly as practicable (i) after the expiration General Partner shall each be released from their respective obligations to consummate the purchase and sale of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its termsGP Assets.
(f) Each of ParentAnything herein to the contrary notwithstanding, Merger Sub and the Company agrees promptly if Raleigh makes a Purchase Election, it shall be released from its obligations to correct any information provided by it for use in the Schedule TO and commence the Offer Documents pursuant to Section 4(a) hereof if and one or more of the conditions set forth in Section 4(a)(i), (ii), (iii) or (iv) has not been satisfied as of the date by which Raleigh would otherwise be required to commence the extent Offer. In the event that Raleigh commences the Offer notwithstanding the failure of any such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected condition to be filed with satisfied as of the SEC and commencement date of the Offer, its commencement of the Offer Documents as so corrected 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 disseminated satisfied as the basis for a decision to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and terminate the Offer Documents each time before without purchasing any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECInterests tendered pursuant thereto.
(g) Parent If Raleigh makes a Purchase Election, Raleigh and the Purchaser shall cause execute and deliver to be provided to Merger Sub all of each other the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Purchaser Release Agreement.
Appears in 1 contract
Sources: Buy/Sell Agreement (American Real Estate Holdings L P)
The Offer. (a) Prior Provided that this Agreement shall not have been terminated and subject to the date terms hereof, within ten (10) business days after the public announcement of this Agreementthe execution hereof by the parties, Merger Sub Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), 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 (and the obligation of Parent to cause Purchaser to accept for payment and to pay for any Shares tendered) shall be subject only to (i) commenced the condition that at least a majority of Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested Company Stock Options (as defined in Section 3.4(a) and unvested Company Stock Options that vest (or upon consummation of the Offer will vest) prior to the Final Date (as defined in Section 9.1), but excluding any Shares held by the Company or any of 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 date of such commencement, the “Offer Commencement Date”"MINIMUM CONDITION"), and (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to satisfaction or the Offer (together with all amendments and supplements thereto and including exhibits thereto, waiver by Purchaser of the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the other conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub A. Purchaser expressly reserves the right to waive any of such condition, to increase the Offer Conditions and Price or to make any change other changes in the terms and conditions of or conditions to the Offer; provided thatprovided, without however, that unless previously approved by the prior written consent of the CompanyCompany in writing, Merger Sub shall not:
no change may be made that (i) waive or change decreases the Minimum Condition (as defined in Annex I);
Offer Price, (ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid in the Offer;
, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) decrease imposes conditions to the number of Company Shares sought Offer in the Offer;
addition to those set forth in Annex A, (v) impose additional Offer Conditions or other requirements amends the conditions set forth in Annex A to broaden the Offer;
scope of such conditions, (vi) otherwise amend, modify or supplement amends any of the Offer Conditions or terms other term of the Offer in a manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; or
, (vii) extend extends the Offer except as provided in Section 2.1(b), or otherwise change (viii) amends or waives the expiration date 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 Offer Company is required. The failure by Parent and Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in a manner other than as contemplated by this Agreementthe Offer.
(cb) Unless extended pursuant Subject to and in accordance with the terms of this Agreementand conditions hereof, the Offer shall expire at midnight (midnight, New York City time) , on the twentieth Business Day date that is twenty-five (25) business days after the date the Offer Commencement Date. Notwithstanding the foregoingis commenced; provided, however, that without the consent of the Company's Board of Directors (the "COMPANY BOARD"), Merger Sub shall have the right to extend the Offer Purchaser may (i) from time to time if, at the scheduled or extended expiration date of extend the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied if at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all any of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.been
Appears in 1 contract
The Offer. The Borrower agrees that from and after the Effective Date, it shall:
(i) at all times comply in all material respects with the Bidding Rules and all other applicable laws and regulations relevant to the Offer, except to the extent that any exemption, consents, waivers, or dispensations has been obtained from the Dutch Authority for the Financial Markets (“AFM”) or any other applicable regulator. The Borrower shall promptly notify the Administrative Agent of any such exemptions, consents, waivers, or dispensations and provide copies of any correspondence or approvals received from the AFM or other relevant regulators;
(ii) promptly provide the Administrative Agent with such information as it may reasonably request in writing regarding material changes to the status and progress of the Offer, including any regulatory and antitrust clearances required in connection with the Offer and any other information reasonably requested in relation to the Offer, subject only to confidentiality, regulatory, or other legal restrictions relating to the supply of such information and only to the extent such information is available to the Borrower. The Borrower shall take all reasonable steps to ensure that such information is provided in a timely and accurate manner. Notwithstanding the foregoing, the Borrower shall not be required to provide any information to the extent it has determined that such information cannot be provided without breaching applicable laws and regulations (including applicable securities and market abuse laws);
(iii) The Borrower shall not (and shall cause its Subsidiaries and Affiliates to not) amend or waive (or consent to amend or waive) any provision of the Offer Documents, other than any amendment, waiver or consent:
(A) made with the consent of the Required Lenders;
(B) required or requested by the AFM or reasonably determined by the Borrower (acting on the advice of its legal advisers) as being necessary or desirable to comply with the requirements of the AFM or any other relevant regulatory body or applicable law or regulation; or
(C) to the extent such amendment, waiver or consent would not constitute a Material Adverse Amendment;
(iv) use commercially reasonable endeavours to implement any Squeeze Out Procedure, or Alternative Transaction Structure as soon as reasonably possible after the Final Settlement Date;
(v) not declare the Offer unconditional unless the Minimum Acceptance Condition is achieved;
(i) [reserved];
(ii) [reserved]; and
(iii) shall, to the extent permitted under applicable laws and regulation, before issuing any Press Release or submitting the final version of the Offer Memorandum directly concerning any material commercial term of the financing of the Offer or the Transactions (the “Relevant Offer Documents”) and only to the extent such Relevant Offer Document, (a) Prior to is materially inconsistent with the Initial Announcement (if applicable) and any disclosure contained in any Form 8-K filed on or around the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO in each case with respect to any disclosure concerning the financing of the Offer (together with all amendments and supplements thereto and including exhibits theretoor the Transactions, including, without limitation, the “Schedule TO”) that included the summary term sheet required thereby andCertain Funds Announcement, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
and/or (b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to materially and adversely affectaffect the interests of the Lenders (in their capacity as such and taken as a whole), the holders Borrower shall use reasonable efforts to provide a copy of such Relevant Offer Documents to the Company SharesAdministrative Agent at least three (3) Business Days before such Relevant Offer Document is issued or submitted and take into account any reasonable comments with respect to such Relevant Offer Documents, provided further that: (i) there shall be no requirement to provide a copy of a Relevant Offer Document to the Administrative Agent in advance if the Borrower is required, under applicable laws and regulations, to issue or submit the Relevant Offer Document immediately or within a period of less than three (3) Business Days, in which case the Borrower shall use reasonable efforts to deliver a copy to the Administrative Agent as soon as practicable prior to issuance or submittance (and if not, as soon as practicable thereafter); or
(viiii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the prior consent of the Company, Merger Sub Administrative Agent shall have at no time be required in order to issue a Relevant Offer Document; (iii) any comments by the right Administrative Agent that is contrary to extend the Offer (i) from time to time if, at the scheduled or extended expiration date requirements of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) applicable laws and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub regulations shall not be required to extend the Offer beyond the earlier of deemed reasonable; and (xiv) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer Administrative Agent shall be for a period deemed to have no comments on the Relevant Offer Document if such comments are not provided within two (2) Business Days of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response copy of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECsuch Relevant Offer Document.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to Provided that this Agreement shall not have been validly terminated in accordance with its terms, as promptly as reasonably practicable after the date of this Agreement, but in no event later than four (4) business days (as defined in Rule 14d-1(g)(3) promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) after the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer within the meaning of the applicable rules and regulations of the SEC. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Annex A (the “Tender Offer Conditions”). The Offer Price shall be net to the seller in cash, without interest.
(b) The initial expiration time of the Offer shall be midnight, New York City time on the twentieth (20th) business day following the commencement of the Offer (determined using Exchange Act Rule 14d-1(g)(3)) (the “Initial Expiration Date”). Notwithstanding the foregoing, unless this Agreement is terminated in accordance with the terms hereof, (i) commenced Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of The Nasdaq Global Market Inc. (“Nasdaq”), the SEC or the staff thereof applicable to the Offer or any period required by any other Law, and (ii) if on the Initial Expiration Date or any subsequent date as of such commencementwhich the Offer is scheduled to expire (together with the Initial Expiration Date, the “Offer Commencement Expiration Date”), any Tender Offer Condition is not satisfied or waived, Merger Sub shall extend the Offer for one (1) or more successive periods as determined by Merger Sub of up to ten (10) business days each (or any longer period as may be requested by Merger Sub and approved in advance by the Company) in order to permit the satisfaction of all of the Tender Offer Conditions; provided, however, that in no event with respect to either clause (i) or (ii) filed shall Merger Sub be required to extend the Offer beyond the Walk Away Date, and provided further however, that if at the Initial Expiration Date or at any subsequent Expiration Date (other than any such Expiration Date that follows an extension of the Offer pursuant to Section 1.1(c)), all of the Tender Offer Conditions (except for the Minimum Condition) are satisfied or have been waived, Merger Sub shall only be required to extend the Offer and its Expiration Date beyond the Initial Expiration Date or such subsequent Expiration Date for one or more successive periods in order to permit the satisfaction of all of the Tender Offer Conditions for an aggregate of forty (40) business days, unless the Minimum Condition shall be satisfied earlier. The Offer may not be terminated prior to the Walk Away Date, unless this Agreement is validly terminated in accordance with Article 9, in which case Merger Sub shall (and Parent shall cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one (1) business day) after such termination of this Agreement. Nothing in this Section 1.1(b) shall affect any termination rights in Article 9; and in the event of any conflict between the provisions of this Section 1.1(b) and Article 9, Article 9 shall be controlling.
(c) If fewer than 90% of the number of outstanding shares of Company Common Stock are accepted for payment pursuant to the Offer (excluding for this purpose as shares that are tendered for payment pursuant to the Offer any shares that are tendered in the Offer pursuant to notices of guaranteed delivery), Merger Sub may, without the consent of the Company, elect to provide a subsequent offering period (and one or more extensions thereof) for the Offer in accordance with Rule 14d-11 of the Exchange Act (each a “Subsequent Offering Period”) following its acceptance for payment of shares of Company Common Stock in the Offer. The Subsequent Offering Period, if any, shall be a period of not less than three (3) nor more than twenty (20) business days in the aggregate (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act).
(d) Merger Sub expressly reserves the right to waive any condition to the Offer, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the consent of the Company, Merger Sub shall not do any of the following:
(i) reduce the number of Shares sought to be purchased by Merger Sub in the Offer;
(ii) reduce the Offer Price;
(iii) modify or waive the Minimum Tender Condition (as defined in Annex A);
(iv) add to the Tender Offer Conditions set forth in Annex A or modify or supplement any Tender Offer Condition (other than to waive such Tender Offer Conditions);
(v) change the form of consideration payable in the Offer; or
(vi) other than as permitted or required by Section 1.1(b) or Section 1.1(c), extend or otherwise change the Expiration Date of the Offer; or
(vii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Shares.
(e) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits theretoOffer, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer which shall contain an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to containing the terms and conditions set forth in this Agreement and Annex A and summary advertisement (such Schedule TO and the documents included therein pursuant to the satisfaction or waiver (if permitted hereunder) of which the Offer Conditionswill be made, Merger Sub shalltogether with any supplements or amendments thereto, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, being referred to as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance DateOffer Documents”). The obligation of Merger Sub (and of Company shall promptly provide Parent with all information concerning the Company that is required by applicable federal securities laws to cause Merger Sub) to accept for payment, and pay be included in the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent necessary such that such information shall have become (the Offer Documents do not contain an untrue statement of a material fact or shall have become known omit to be) false or misleading in state any material respectfact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Each of Parent and Merger Sub have used, shall take all steps necessary to amend or supplement the Offer Documents and shall use, their reasonable best efforts to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaws. The Parent and Merger Sub shall afford the Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and upon the Offer Documents each time before any such document is they are filed with the SECSEC and disseminated to stockholders, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall (i) provide to the Company and its counsel with copies of any written comments (iand a reasonably detailed description of any oral comments) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those comments or other communications and such comments, (ii) consult with the Company and its counsel prior to responding to any such comments, (iii) provide the Company and its counsel a reasonable opportunity to participate in review and comment on any written or oral response to such comments or any proposed amendment to the response of Parent and Merger Sub Offer Documents prior 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 Sub or their counsel in any discussions or meetings the filing thereof with the SECSEC and (iv) provide the Company and its counsel with copies of all such responses.
(gf) Parent shall provide or cause to be provided to Merger Sub all of on a timely basis the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) pay for all Shares validly tendered and not withdrawn pursuant to performthe Offer that Merger Sub becomes obligated to purchase pursuant to the Offer promptly (within the meaning of Rule 14e-1(c) under the Exchange Act) after the expiration of the Offer; provided that Merger Sub shall (and Parent shall cause Merger Sub to) pay for any Shares validly tendered in any Subsequent Offering Period promptly after such Shares are tendered.
(g) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Shares occurring or having a record date on a timely basis, all or after the date of this Agreement and prior to the payment by Merger Sub’s obligations under this AgreementSub for the Shares.
Appears in 1 contract
Sources: Merger Agreement (Lasercard Corp)
The Offer. (a) Prior to the date of this Agreement, Merger Sub Provided that (i) commenced this Agreement shall not have been terminated in accordance with Section 9.1 and (ii) none of the events set forth in Annex A hereto that would entitle Parent and Merger Subsidiary to fail to consummate the Offer shall have occurred and be continuing (and shall not have been waived by Parent), as promptly as practicable, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the date of such commencement“Exchange Act”)), the Offer for any and all of the Shares, together with the associated rights issued pursuant to the Rights Plan (as defined herein) (the “Offer Commencement DateCompany Rights”), at the Offer Price (as defined below). Except where the context otherwise requires, all references herein to Shares or the Company’s common stock shall include the associated Company Rights. The obligation of Merger Subsidiary to accept for payment and to pay for any Shares tendered (and the obligation of Parent to cause Merger Subsidiary to accept for payment and to pay for any Shares tendered) shall be subject only to (i) the condition that at least a majority of the outstanding Shares, on a Fully Diluted Basis (on a “Fully Diluted Basis” meaning the number of Shares outstanding, together with the Shares which the Company may be required to issue pursuant to Company Options (as defined herein)), be validly tendered and not withdrawn (the “Minimum Condition”), and (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the other conditions set forth in Annex I hereto (the “Offer Conditions”). A. Merger Sub Subsidiary expressly reserves the right to waive any of increase the Offer Conditions and Price or to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that unless previously approved by the Company in writing, no change may be made that, without the prior written consent of the Companyexcept as set forth herein, Merger Sub shall not:
(i) waive or change decreases the Minimum Condition (as defined in Annex I);
Offer Price, (ii) decrease the Offer Price;
(iii) change changes the form or combination of consideration to be paid in the Offer;
, (iii) reduces the number of Shares to be purchased in the Offer, (iv) decrease amends the number conditions set forth in Annex A to broaden the scope of Company Shares sought in such conditions, add any additional conditions, or otherwise adversely affect the Offer;
holders of Shares, (v) impose additional extends the Offer Conditions except as provided in Section 1.1(c), or other requirements to the Offer;
(vi) otherwise amendamends or waives the Minimum Condition. It is agreed that the conditions set forth in Annex A are for the sole benefit of Parent and Merger Subsidiary and may be waived by Parent and Merger Subsidiary, modify in whole or supplement in part at any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to time and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, iftime, in the determination of Parenttheir sole discretion, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition Condition, as to which prior written Company approval is required. The failure by Parent and those that by their nature are Merger Subsidiary at any time to be satisfied at the expiration exercise any of the Offer) have been satisfied orforegoing rights shall not be deemed a waiver of any such right, to the extent permissible, have been waived by Merger Sub and (ii) no each such individual extension of the Offer right shall be for a period of more than five Business Daysdeemed an ongoing right that may be asserted at any time and from time to time. Following expiration of The Company agrees that no Shares held by the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction Company or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly any Subsidiary will be tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to the date of this AgreementProvided that nothing shall have occurred that, Merger Sub (i) commenced had the Offer (the date of such commencementreferred to below been commenced, the “Offer Commencement Date”), (ii) filed with the SEC would give rise to a Tender Offer Statement on Schedule TO with respect right to terminate the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer pursuant to Purchase and a form any of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I A hereto, subject to the last sentence of this Section 1.1(a), as promptly as practicable (but in any event not later than March 6, 2000), 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, without interest (subject to reduction for any stock transfer taxes payable by the seller, if payment is to be made to a Person other than the Person in whose name the certificate for such Shares is registered, or for any applicable withholding tax), provided, however, that Parent may designate another direct or indirect subsidiary of Parent as the bidder in the Offer (within the meaning of Rule 14d-1(g) under the Exchange Act, in which case references herein to Purchaser will be deemed to apply to such subsidiary, as applicable). The obligation of Parent to cause Purchaser to consummate the Offer and to accept for payment and to promptly pay for Shares validly tendered in the Offer and not validly withdrawn in accordance therewith will be subject to, and only to, those conditions set forth in Annex A hereto (the “"Offer Conditions”"). Merger Sub .
(b) Subject to the requirements of applicable Law, Purchaser expressly reserves the right to waive any of the conditions to the Offer Conditions and to make any change changes in the terms of or conditions to of the Offer; provided thatprovided, however that without the prior written consent of the Company, Merger Sub shall Purchaser will not:
, and Parent will cause Purchaser not to, (i) waive decrease or change the form of the Per Share Amount, (ii) decrease the number of Shares sought in the Offer, or (iii) amend or waive the Minimum Condition (as defined in Annex I);
(iiA hereto) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) or impose additional Offer Conditions or conditions other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of than the Offer Conditions on the Offer. In the event that any Offer Condition is not satisfied or terms of waived at the Offer in a manner time that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than (as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) such date may from time to time ifbe extended, the "Expiration Date") would otherwise occur, Purchaser may from time to time extend the Expiration Date (but not beyond the Outside Date), or amend any term of the Offer in any manner not materially adverse to the Stockholders. In the event that at least a majority but less than 90% of the Voting Securities, calculated on a fully diluted basis, have been validly tendered and not withdrawn on the scheduled or extended expiration date of the Offer, any of Purchaser shall, unless otherwise notified by the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waivedCompany in writing, until such Offer Conditions are satisfied or waived (if permitted hereunder) accept and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that purchase all of the Offer Conditions (other than Shares tendered in the Minimum Condition initial offer period and those that by their nature are may notify Stockholders of Purchaser's intent to be satisfied provide a "subsequent offering period" for tender of at the expiration least 90% of the Offer) have been satisfied or, Shares pursuant to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject . The Offer may be extended in connection with an increase in the consideration to be paid pursuant to the terms Offer so as to comply with applicable rules and conditions set forth in this Agreement regulations of the Securities and to Exchange Commission (the "SEC"). Assuming the prior satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall will cause it to, consummate the Offer in accordance with its terms and Purchaser to accept for payment payment, and pay for, as promptly as practicable (i) after in accordance with the expiration terms of the Offer (regardless of Subsequent Offering Periods)Offer, all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in as soon as practicable after the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, Expiration Date or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditionsany extension thereof.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Bass America Inc)
The Offer. (a) Prior to Not later than the first business day after the date of this Agreement, Merger Sub (i) commenced ACQUIROR, Acquisition Subsidiary and OPTA will make a public announcement of the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawsOffer.
(b) Provided that this Agreement shall not have been terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto shall have occurred or be existing, Acquisition Subsidiary shall commence, and ACQUIROR shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as practicable after the date hereof, but in no event later than five (5) business days after the initial public announcement of Acquisition Subsidiary’s intention to commence the Offer. The obligation of Acquisition Subsidiary to accept for payment and pay for OPTA Shares tendered pursuant to the Offer is shall be subject only to the satisfaction of the conditions set forth in Annex I A hereto (unless the failure of any such condition was caused by any breach by ACQUIROR or Acquisition Subsidiary of this Agreement in which case Acquisition Subsidiary shall be obligated to accept for payment and pay for OPTA Shares tendered pursuant to the Offer provided that such failure has been waived by OPTA), including the condition that a number of OPTA Shares representing that number of OPTA Shares which would equal more than fifty percent (50%) of the OPTA Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the “Offer ConditionsMinimum Condition”). Merger Sub Acquisition Subsidiary expressly reserves the right to waive any of such condition, to increase the Offer Conditions Per Share Amount and to make any change other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that, without the prior written consent of the CompanyOPTA, Merger Sub shall not:
Acquisition Subsidiary will not (i) waive or change decrease the Minimum Condition (as defined in Annex I);
Per Share Amount, (ii) decrease reduce the Offer Price;
maximum number of OPTA Shares to be purchased in the Offer, (iii) change the form of the consideration to be paid payable in the Offer;
, (iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amendadd to, modify or supplement any of the conditions to the Offer Conditions or terms of the Offer set forth in a manner that adversely affectsAnnex A hereto, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(viiv) extend or otherwise change the expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) make any other change in a manner other than the terms or conditions of the Offer which is adverse to the holders of OPTA Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Acquisition Subsidiary shall, and ACQUIROR shall cause Acquisition Subsidiary to, accept for payment and pay, as contemplated by this Agreementpromptly as practicable after expiration of the Offer, for all OPTA Shares validly tendered and not withdrawn.
(c) Unless extended pursuant to On the date of commencement of the Offer, ACQUIROR and in accordance Acquisition Subsidiary shall file with the terms Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the “Schedule TO”), with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and the forms of related letters of transmittal (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to OPTA’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. ACQUIROR and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading, and ACQUIROR and Acquisition Subsidiary shall take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of OPTA Shares, in each case as and to the extent required by applicable law. OPTA and its counsel shall be given the reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. ACQUIROR and Acquisition Subsidiary shall provide OPTA and its counsel with a copy of any written comments or telephonic notification of any oral comments ACQUIROR or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. ACQUIROR and its counsel shall provide OPTA and its counsel with a reasonable opportunity to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Offer Documents or this Agreement. In the event that ACQUIROR or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond promptly to such comments and take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms and conditions hereof, the Offer shall expire at midnight (New York City time) remain open until midnight, Eastern Time, on the twentieth Business Day date that is twenty (20) business days after the Offer Commencement Date. Notwithstanding is commenced (within the foregoingmeaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of the CompanyOPTA, Merger Sub shall have the right to extend the Offer Acquisition Subsidiary may (i) from time to time ifextend the Offer, if at the scheduled or extended expiration date of the Offer, Offer any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) set forth in Annex A shall not have been satisfied or waived, for one (1) or more periods (none of which shall exceed ten (10) business days) not to exceed thirty (30) business days in the aggregate or, if earlier, until such Offer Conditions time as such conditions are satisfied or waived (if permitted hereunder) and waived, (ii) extend the Offer for any period one (1) or more periods, not to exceed thirty (30) business days in the aggregate, if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, or (iii) extend the Offer on one (1) occasion for an aggregate period of not more than ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of OPTA Shares which would equal more than ninety percent (90%) of the issued and outstanding OPTA Shares; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Condition and the conditions set forth in paragraphs (a) or (d) in Annex A. If on the initial scheduled expiration date of the Offer or any extension thereof, any applicable waiting period otherwise required by under any applicable Legal Requirement. If any foreign laws regulating competition, antitrust, investment or exchange controls has not expired or terminated prior to the expiration of the Offer Conditions is (the “Foreign Antitrust Condition”), Acquisition Subsidiary shall, if requested to do so by OPTA, extend the expiration date of the Offer until a date not satisfied later than January 15, 2003 and ACQUIROR shall use its best efforts to obtain all permits, authorizations, consents, expiration or waived termination of waiting periods, and approvals as may be required by any Governmental Entity. In addition, ACQUIROR and Acquisition Subsidiary each agree that if all of the conditions set forth in Annex A are not satisfied, including the satisfaction of the Minimum Condition, on any scheduled expiration date of the Offer, Merger Sub then Acquisition Subsidiary shall, and ACQUIROR shall extend the Offercause Acquisition Subsidiary to, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier for one (1) or more periods of not less than ten (x10) the End Date and (y) the date business days if requested to do so by OPTA, provided that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer OPTA shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period entitled to make only three (“Subsequent Offering Period”3) in accordance with Rule 14d-11 of the Exchange Actsuch requests.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and provided further that the Company is prepared (in accordance with Section 2.02(c)) to file the Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable after the date hereof (and in any event no later than 10 Business Days after the date of initial public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 of the Exchange Act) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The obligation of Merger Sub to accept for payment and pay for any Shares validly tendered and not withdrawn pursuant to the Offer shall be subject to the conditions set forth in Annex A and no other conditions (the “Offer Conditions”). The Company agrees that no Shares held by any of its Subsidiaries will be tendered pursuant to the Offer.
(b) Merger Sub, or Parent on behalf of Merger Sub, expressly reserves the right to waive, in its sole discretion, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, unless otherwise provided by this Agreement or previously approved by the Company in writing (which approval may be granted or withheld by the Company in its sole discretion), Merger Sub, and Parent on behalf of Merger Sub, shall not, subject to applicable Law, (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) decrease the number of Shares sought in the Offer, (iv) impose conditions to the Offer in addition to the Offer Conditions, (v) amend or modify any of the Offer Conditions in a manner that adversely affects the holders of Shares, (vi) change or waive the Minimum Tender Condition or (vii) extend or otherwise change the Expiration Date other than as required or permitted by this Agreement.
(c) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, or such subsequent time to which the expiration of the Offer is extended in accordance with this Agreement, the “Expiration Date”).
(d) Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub may, without the consent of the Company, (i) extend the Offer for one or more periods of time of up to 20 Business Days per extension (the length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) if at any then-scheduled Expiration Date any Offer Condition has not been satisfied (and, to the extent permitted, shall not have been waived by Parent) or (ii) elect to provide a Subsequent Offering Period. The Offer Price may be increased, and the Offer may be extended to the extent required by Law in connection with such increase in the Offer Price, in each case without the consent of the Company.
(e) Subject to the terms and conditions of this Agreement, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub, or Parent on behalf of Merger Sub, shall extend the Offer at the request of the Company on one or more occasions for periods of up to 20 Business Days per extension (the length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) up to and including the Outside Date, if at any then-scheduled Expiration Date any of the Offer Conditions have not been satisfied or waived. In addition, Merger Sub, or Parent on behalf of Merger Sub, shall extend the Offer for any period or periods if required by any Law, rule, regulation, interpretation or position of the SEC or the staff thereof or the NASDAQ Global Market (“NASDAQ”) applicable to the Offer.
(f) Following expiration of the Offer, Merger Sub (or Parent on its behalf) may, in its sole discretion, provide a subsequent offering period or one or more extensions thereof (a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act if, as of the commencement of such period, there shall not have been validly tendered (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), and not properly withdrawn pursuant to the Offer, that number of Shares necessary to permit the Merger to be effected without a meeting of shareholders of the Company in accordance with Section 302A.621 of the MBCA. The Offer Documents shall provide for the possibility of a “subsequent offering period”.
(g) Subject to the foregoing, including the requirements of Rule 14d-11 of the Exchange Act, and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for (A) all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Expiration Date and (B) each Share validly tendered in any Subsequent Offering Period promptly after such Share is so tendered. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Merger Sub expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Laws. Any such delay in payment shall be effected in compliance with Rule 14e-1(c) under the Exchange Act.
(h) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Shares such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code or any other applicable Tax Law. To the extent that amounts are so withheld by Merger Sub, such amounts shall be (a) paid over to the appropriate Governmental Authority and (b) treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made by Merger Sub.
(i) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any change in the number of shares of outstanding Company Common Stock by reason of any stock dividend, stock split, recapitalization, combination, exchange of shares, merger, consolidation, reorganization or the like occurring or having a record date on or after the date of this Agreement and prior to the Acceptance Time; provided, however, that nothing in this Section 2.01(i) shall be construed as permitting the Company to take any such action or to enter into any transaction otherwise prohibited by this Agreement.
(j) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Section 8.01. If this Agreement is terminated pursuant to Section 8.01, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer without accepting any Shares previously tendered. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(k) As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub shall: (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including any exhibits thereto, the “Schedule TO”) that included ), which shall contain an offer to purchase reflecting the summary term sheet required thereby andterms and conditions of this Agreement, as exhibits, the Offer to Purchase and a form of the letter of transmittal and summary advertisement and other ancillary documents and instruments, if any, in respect of the Offer (collectivelysuch Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments or supplements thereto, and including exhibits thereto, the “Offer Documents”); (ii) timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes; and (iii) caused cause the Offer Documents to be disseminated to holders of Company Shares as and to the extent required by applicable federal securities laws.
(b) the Exchange Act and the MBCA. The Offer is subject only Company shall promptly furnish to the conditions set forth in Annex I hereto (the “Offer Conditions”). Parent and Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of writing all information concerning the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to that may be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied Law or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) requested by Parent or Merger Sub, of each of Sub for inclusion in the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and shall use, their reasonable best efforts agree to take all steps necessary to cause the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case as, and to the extent extent, required by applicable federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested by the Company and or its counsel. Parent and Merger Sub shall promptly provide the Company and its counsel with (i) copies of any comments or other communicationswritten comments, whether written or oraland shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from time to time after the date hereof from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications comments. The Company and (ii) its counsel shall be given a reasonable opportunity to participate in review any written responses to such SEC comments, and Parent shall give due consideration to the response of reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(l) Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings promptly file with the SEC.
(g) Parent shall cause to be provided to Merger Sub all Commissioner of Commerce of the funds necessary State of Minnesota all materials referred to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to in Section 80B.04 of the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this AgreementMinnesota Statutes.
Appears in 1 contract
The Offer. (a) Prior Barrick shall promptly publicly announce its intention to amend the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Original Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject 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 this Agreement 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 satisfaction or waiver (if permitted hereunder"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 Conditions, Merger Sub shall, and Parent shall cause it to, consummate 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 its terms the Securities Act (Ontario) and accept for payment regulations thereunder and pay forall other applicable securities laws, as promptly as practicable (i) after including the expiration applicable securities laws of the Offer United States, (regardless collectively, "Applicable Securities Laws") to each registered holder of Subsequent Offering PeriodsShares 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, all Company Shares validly tendered and however, that if the mailing of the Notice of Variation is delayed by reason of Placer Dome not withdrawn pursuant having provided to Barrick the Offer and (iiDirectors' Circular referred to in Section 2.1(h)(vi) all Company Shares validly tendered 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 Subsequent Offering Period (preparation of the time at which Company Shares are first accepted for payment under Notice of Variation as may be reasonably requested by Barrick in order that the OfferNotice of Variation comply in all material respects with Applicable Securities Laws, then the “Acceptance Time” and Latest Mailing Time shall be extended to 11:59 p.m. on the fifth business day following the date on which Company Shares are first accepted for payment under the OfferPlacer Dome supplies such necessary documents, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, information or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditionsother assistance.
(ec) Merger Sub shall not terminate Prior to the Offer prior to any scheduled expiration date without the prior written consent printing of the Company except in the event that this Agreement is terminated in accordance with its terms.
(f) Each Notice of ParentVariation, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information Barrick shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company provide Placer Dome and its counsel shall be given with a reasonable opportunity to review and comment on any change 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 TO A hereto shall have been satisfied or waived, Barrick shall take up and pay for all of the Shares tendered under the Offer Documents each promptly and in any event no later than two business days following the time before any at which it becomes entitled to take up such document is filed 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 SEC20th day following the Latest Mailing Time, and Parent and Merger Sub shall give reasonable and good faith consideration subject to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive right of Barrick to extend from time to time from the SEC or its staff with respect 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 Schedule TO 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 Documents promptly after receipt is made, change the form of those comments consideration payable under the Offer (other than to increase the total consideration per Share and/or add additional consideration) or other communications and otherwise vary the Offer or any terms or conditions thereof (ii) a reasonable opportunity which for greater certainty, subject to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be givenSection 2.1(g), including by participating with Parent and Merger Sub or their counsel does not include a waiver of a condition) in any discussions or meetings with a manner which is adverse to the SECShareholders.
(g) Parent Barrick may waive the Minimum Tender Condition only if: (i) there shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase have been validly deposited pursuant to the Offer, Offer and shall cause Merger Sub to perform, not withdrawn at the Expiry Time that number of Shares which constitutes at least 60% of the Shares outstanding calculated on a timely 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 Merger Sub’s obligations 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 concert with Barrick) shall have occurred that would render it impossible for one or more of the conditions set out on Schedule A hereto to be satisfied;
(iv) assurances satisfactory to Barrick, acting reasonably, shall have been received by Barrick that all waivers, rulings or orders necessary for Barrick to amend the Original Offer and to mail to the 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 shall 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 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 covenants in this Agreement;
(viii) all representations and warranties of Placer Dome set forth in this Agreement shall be true and correct in all material respects at the time of the making of the amended Offer; and
(ix) no cease trade order, injunction or other prohibition at Law shall exist against Barrick making the Offer or taking up or paying for Shares deposited under the Offer. Prior to printing the Directors' Circular, Placer Dome shall provide Barrick with a reasonable opportunity to review and 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 written fairness opinion of each of CIBC World Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇, Sachs & Co. referred to below.
Appears in 1 contract
The Offer. (a) Prior Subject to the provisions of this Agreement, as promptly as practicable, and in any event no more than ten Business Days, after the date of this Agreement, Merger Sub (i) commenced Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence, within the Offer (meaning of Rule 14d-2 under the date Securities Exchange Act of such commencement1934, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer as amended (together with all amendments the rules and supplements thereto and including exhibits theretoregulations thereunder (the "Exchange Act")), the “Schedule TO”) that included the summary term sheet required thereby andOffer. The obligation of Merger Subsidiary to, as exhibitsand of Parent to cause Merger Subsidiary to, the Offer to Purchase accept for payment and a form of letter of transmittal and summary advertisement (collectively, together with pay for any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to Shares tendered shall be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the satisfaction of the conditions set forth in Annex I hereto (A and to the “Offer Conditions”)terms and conditions of this Agreement. Parent and Merger Sub Subsidiary expressly reserves reserve the right to waive any of the conditions to the Offer Conditions to the extent legally permissible (other than the Minimum Condition (as defined in Annex A), which may not be waived without the prior written consent of the Company), to increase the price per Share payable in the Offer and to make any change other changes in the terms and conditions of or conditions to the Offer; provided Offer except that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or no change the Minimum Condition (as defined in Annex I);
(ii) decrease may be made to the Offer Price;
(iii) change the that would alter form of consideration to be paid paid, no decrease in the Offer;
(iv) decrease Offer Price or the number of Company Shares sought in the Offer;
(v) impose Offer may be made, no change which imposes additional Offer Conditions or other requirements conditions to the Offer;
(vi) otherwise amend, modify Offer or supplement modifies any of the Offer Conditions or terms of the Offer conditions set forth in a Annex A in any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; orShares may be made and neither Parent nor Merger Subsidiary may extend the Offer, except in accordance with Section 1.01(c).
(viib) extend or otherwise change On the expiration date of commencement of the Offer, Parent and Merger Subsidiary shall file with the Securities and Exchange Commission ("SEC") a Tender Offer Statement on Schedule TO (as amended and supplemented from time to time, the "Schedule TO"), which shall comply in all material respects with the provisions of applicable federal securities laws, and shall contain (including as an exhibit) or incorporate by reference the offer to purchase relating to the Offer and forms of the related letter of transmittal and other appropriate documents (which documents, as amended or supplemented from time to time, are referred to herein collectively as the "Offer Documents"). The Parent and the Merger Subsidiary further agree to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply in a manner all material respects with the provisions of the Exchange Act and any other than as applicable laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company's stockholders that may be reasonably required or requested in connection with any action contemplated by this AgreementSection 1.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC. Parent and Merger Subsidiary agree to provide the Company, and to consult with the Company and its counsel regarding, any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptly after receipt thereof and any responses thereto. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent and Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each case, as and to the extent required by law.
(c) Unless extended pursuant Subject to and in accordance with the terms of this Agreementand conditions hereof, the Offer shall expire at midnight (remain open until midnight, New York City time) , on the twentieth date that is 20 Business Day Days after the date the Offer Commencement Date. Notwithstanding the foregoingis commenced; provided, however, that without the consent of the Company, Parent and Merger Sub Subsidiary shall have the right to extend the Offer (i) from time to time if, at the any scheduled or extended expiration date of the Offer, any of the conditions to the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) set forth in Annex A shall not have been satisfied or earlier waived, until such Offer Conditions conditions are satisfied or waived earlier waived; provided that if only the condition set forth in clause (if permitted hereundery) of the first sentence of Annex A hereto is not satisfied or earlier waived, Parent and Merger Subsidiary shall extend the Offer at the request of the Company (but in no event shall Parent and Merger Subsidiary be obligated to extend expiration of the Offer pursuant to this clause (i) beyond September 30, 2004); and provided further that Parent and Merger Subsidiary shall, upon the written request of the Company, extend the Offer for one or more periods not to exceed an aggregate of fifteen Business Days if, as of any expiration date, all of the conditions set forth in clause (z) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any law, (iii) on one or more occasions (all such occasions aggregating not more than ten Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, all of the Offer Conditions is not conditions to Merger Subsidiary's obligations to accept for payment Shares are satisfied or waived on any scheduled expiration date earlier waived, but the number of Shares validly tendered (and not withdrawn) pursuant to the Offer, Merger Sub shall extend the Offer, if, in the determination of together with Shares then owned by Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfiedrepresents less than 90% of the outstanding Shares on a fully diluted basis; provided, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided thathowever, in each case, (i) Merger Sub shall not be required that Parent's decision to extend the Offer beyond in the earlier case of this clause (xiii) shall constitute a waiver of the End Date conditions set forth in clauses (d) and (yf) the date that is 30 days after the date that all (excluding any willful or intentional breach of any material obligation of the Offer Conditions Company) on Annex A and of its right to terminate the Agreement under Sections 7.01(b), (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offerd), (k) have been satisfied or, to the extent permissible, have been waived by Merger Sub or (l) and (iiiv) no such individual extension of the Offer shall be for a period of one or more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period periods of up to an additional 20 Business Days in the aggregate (“collectively, the "Subsequent Offering Period”") in accordance with pursuant to Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Parent and Merger Subsidiary shall also have the right to extend the Offer in accordance with Section 7.01(f).
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditionsand this Agreement, Merger Sub Subsidiary shall, and Parent shall cause it Merger Subsidiary to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company for Shares validly tendered and not withdrawn pursuant to the Offer and as soon as practicable after the expiration thereof (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading but in any material respectevent within three Business Days); provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of Subsidiary on a timely basis the funds necessary to purchase any Company Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Prima Energy Corp)
The Offer. (a) Prior Provided that this Agreement shall not have been terminated in accordance with Section 7.1 hereof and none of the events set forth in Annex I hereto shall have occurred and be existing, Parent shall cause Purchaser to commence and Purchaser shall commence (within the date meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act") the Offer as promptly as practicable, but in no event later than five business days following the execution of this Agreement, Merger Sub (i) commenced . Upon the Offer (the date satisfaction of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (hereto, subject to any extension of the “Offer Conditions”)permitted by Section 1.1(d) hereof, Parent and Purchaser will be obligated to accept for payment any Shares validly tendered and not withdrawn. Merger Sub Parent expressly reserves the right from time to time, subject to Sections 1.1 (b) and 1.1(d) hereof, to waive any of such condition, to increase the Offer Conditions and Per Share Amount, or to make any change other changes in the terms and conditions of the Offer. The Per Share Amount shall be net to the seller in cash, subject to reduction only for any applicable Federal back-up withholding or conditions stock transfer taxes payable by the seller. The Company agrees that no Shares held by the Company or any of its Subsidiaries (as hereinafter defined) will be tendered pursuant to the Offer; provided that, without .
(b) Without the prior written consent of the Company, Merger Sub Parent shall not:
not (i) waive decrease the Per Share Amount or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I);
(ii) decrease to permit the Offer Price;
(iii) change purchase of Shares constituting less than a majority of the form number of consideration to be paid in the Offer;
Shares outstanding, (iv) decrease the number of Company Shares sought in impose additional conditions to the Offer;
, (v) impose additional Offer Conditions amend any one or other requirements more of the conditions set forth in Annex I to broaden the Offer;
scope of such condition or conditions or (vi) otherwise amend, modify or supplement amend any of the Offer Conditions or terms other term of the Offer in a any manner that adversely affects, or could reasonably be expected adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with . Upon the terms of this Agreement, and subject to the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date conditions of the Offer, any of Purchaser will accept for payment and purchase, as soon as permitted under the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date terms of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant prior to the expiration of the Offer.
(c) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") having only the conditions set forth in Annex I hereto. As soon as practicable on the date the Offer is commenced, Parent and Purchaser shall file with the Securities and Exchange Commission (the "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 that will comply in all material respects with the provisions of such Schedule 14D-1 and all applicable Federal securities laws, and will include or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and summary advertisement (ii) all Company Shares validly tendered which documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Subsequent Offering Period (Offer and related transactions, are referred to collectively herein as the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”"Offer Documents"). The obligation of Merger Sub (Parent and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees Purchaser agree promptly to correct any information provided by it for use in the Schedule TO and 14D-1 or the Offer Documents if and to the extent that such information any of them shall have become (or shall have become known to be) false or misleading in any material respect. respect (and the Company, with respect to written information supplied by it specifically for use in the Schedule 14D-1 or the Offer Documents, shall promptly notify Parent of any required corrections of such information and shall cooperate with Parent and Merger Sub have usedPurchaser with respect to correcting such information) and to supplement the information provided by it specifically for use in the Schedule 14D-1 or the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and shall use, their reasonable best efforts Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO 14D-1, as so corrected or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub Purchaser shall provide the Company and its counsel in writing with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub Purchaser 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 such comments.
(d) The Offer to Purchase shall provide for an initial expiration date of 20 business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement. Purchaser agrees that it shall not terminate or withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived. If at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived, Parent may, from time to time extend the expiration date of the Offer until the date such conditions are satisfied or earlier waived and Parent becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer; provided, however, that the expiration date of the Offer may not be extended beyond September 30, 1999 without the consent of the Company. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the expiration date of the Offer (as it may be extended) for any period required by applicable rules and regulations of the SEC in connection with an increase in the consideration to be paid pursuant to the Offer or any other communications material development affecting the Offer and (ii) extend the expiration date of the Offer (as it may be extended) for up to ten business days, if on such expiration date the conditions for the Offer described on Annex I hereto shall have been satisfied or earlier waived, but the number of Shares that have been validly tendered and not withdrawn represents less than 90 percent of the then issued and outstanding Shares on a reasonable opportunity to participate in fully diluted basis; provided, however, that the response expiration date of the Offer may not be extended beyond September 30, 1999 without the consent of the Company. Parent and Merger Sub to those comments and to provide comments on Purchaser agree that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub if all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant conditions to the OfferOffer set forth on Annex A are not satisfied on any scheduled expiration date, and then if all such conditions are reasonably capable of being satisfied prior to September 30, 1999, Purchaser shall cause Merger Sub extend the Offer from time to performtime (each such individual extension not to exceed 10 Business Days after the previously scheduled expiration date) until such conditions are satisfied or waived; provided, on a timely basishowever, all that Purchaser shall not be required to extend the Offer beyond August 30, 1999 if, as of Merger Sub’s obligations under this Agreementsuch date, the Minimum Condition shall not have been satisfied.
Appears in 1 contract
The Offer. (a) Prior to Provided that this Agreement shall not have been terminated in accordance with Section 8, as promptly as practicable after the date of this Agreement but in no event more than ten (10) business days after the date of this Agreement, Merger Sub Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Purchaser of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), promptly after the later of (i) commenced twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) and (ii) the earliest date as of which the Minimum Condition has been satisfied and each of the other Offer Conditions has been satisfied, or waived to the extent waivable in accordance with the terms of Section 1.1(c), by Purchaser, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms, and accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Expiration Date.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects, or reasonably would be expected to adversely affect, any holder of Shares, (F) change the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Date (or any rescheduled Expiration Date), unless this Agreement is terminated in accordance with Section 8.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the date of such commencement“Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Offer Commencement Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(1) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied (iiother than conditions which by their nature are to be satisfied at the Offer Acceptance Time), or waived by Parent or Purchaser if permitted hereunder, then prior to the then scheduled expiration date Purchaser shall extend the Offer for one or more periods of not more than five (5) filed business days each (or such other number of business days as the parties may agree and ending no later than End Date in order to permit the satisfaction of such conditions (subject to the right of Purchaser to waive any Offer Condition (other than the Minimum Condition) in accordance with this Agreement); and
(2) Purchaser shall extend the Offer for any period or periods required by applicable Legal Requirements, interpretation or position of the SEC or its staff or NASDAQ or its staff, provided Purchaser shall extend the then current Expiration Date of the Offer until the first business day on which the Offer can be accepted under applicable Legal Requirements.
(f) Purchaser may (and the Offer Documents shall reserve the right of Purchaser to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 under the Exchange Act of not less than three (3) nor more than twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the Offer. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Purchaser to, and Purchaser shall, accept for payment and pay for all Shares validly tendered during such subsequent offering period as promptly as practicable after any such Shares are tendered and in any event in compliance with Rule 14e-1(c) under the Exchange Act.
(g) In the event that this Agreement is terminated pursuant to the terms hereof, 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, shall not acquire any Shares pursuant to the Offer and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all tendered Shares to the registered holders thereof.
(h) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Purchaser shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, will contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary advertisement (collectivelyii) cause the Offer to Purchase and related documents to be disseminated to holders of Shares. Parent and Purchaser agree that they shall cause the Schedule TO and all exhibits, together with any amendments or supplements thereto, thereto (which together constitute the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required filed by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions and to make any change in the terms of either Parent or conditions to the Offer; provided that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance Purchaser with the terms of this Agreement, SEC to comply in all material respects with the Offer shall expire at midnight (New York City time) on Exchange Act and the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (rules and regulations thereunder and other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal RequirementRequirements. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub Purchaser and the Company agrees to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their Parent further agrees to use all reasonable best efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLegal Requirements. The Company shall promptly furnish or otherwise make available to Parent and Purchaser or Parent’s legal counsel all information concerning the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.1(h) including communicating the Offer to the record and beneficial holders of the Shares. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall Purchaser agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response such comments. Each of Parent and Merger Sub Purchaser shall respond promptly to those any comments and of the SEC or its staff with respect to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Sub the Offer Documents or their counsel in any discussions or meetings with the SECOffer.
(gi) Without limiting the generality of Section 9.12, Parent shall cause to be provided to Merger Sub Purchaser all of the funds necessary to purchase any Company Shares that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub Purchaser to perform, on a timely basis, all of Merger SubPurchaser’s obligations under this Agreement. Parent and Purchaser shall, and each of Parent and Purchaser shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
The Offer. (a) Prior Provided that this agreement shall not have been terminated in accordance with section 8 and that no circumstances exist that would result in a failure to the date satisfy any of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto section 1.1(c)(i) through (vi), SUB shall commence the “Offer Conditions”)as soon as practicable, but in no event later than the fifth business day after the date of initial announcement of this agreement and the Offer. Merger Sub expressly reserves SUB shall accept for payment Shares that have been validly tendered, and not withdrawn, pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer shall have been satisfied or waived by SUB. SUB shall have the right to waive any of increase the Per Share Amount payable in the Offer Conditions and or to make any change other changes in the terms and conditions of or conditions to the Offer; provided that, without unless previously approved by HK in writing, no change may be made that (x) decreases the prior written consent of Per Share Amount payable in the CompanyOffer, Merger Sub shall not:
(iy) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid in the Offer;
Offer or (ivz) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements imposes conditions to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner addition to those set forth in section 1.1(c) or broadens the scope of those conditions; and further provided that adversely affects, or could reasonably be expected (I) SUB shall have the right in its sole discretion to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of 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 a manner other than as contemplated by this Agreement.
section 2.9(c), (cII) Unless extended pursuant to and in accordance with the terms of this Agreement, SUB may extend the Offer shall expire at midnight for such additional number of trading days as may be reasonably necessary to allow Shares tendered under "signature guarantees" to be delivered, and (New York City timeIII) on if Parent or SUB determines, upon the twentieth Business Day after advice of outside legal counsel, that any supplement or amendment to the Offer Commencement Date. Notwithstanding Documents (as defined in section 1.1(b)) is required to be circulated to the foregoingofferees, without the consent of the Company, Merger Sub then Parent or SUB shall have the right to extend the Offer 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 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.
(ib) from time to time if, at As soon as practicable on the scheduled or extended expiration date of commencement of the Offer, any SUB shall file with the Securities and Exchange Commission (the "SEC") a tender offer statement on Schedule 14D-1 with respect to the 1 2 Offer which will contain the offer to purchase and form of the Offer Conditions related letter of transmittal (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied together with any supplements or waivedamendments thereto, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offercollectively, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”"Offer Documents"). The obligation Offer Documents will comply in all material respects with the provisions of Merger Sub (applicable federal securities laws and the securities laws of the state of Delaware. The information provided and to be provided by HK, Parent to cause Merger Sub) to accept and SUB for payment, and pay use in the Offer Price forDocuments shall not, each Company Share validly tendered on the date filed with the SEC and not properly withdrawn pursuant on the date first published or sent or given to the Offer shall 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 subject only stated therein or necessary in order to make the satisfactionstatements therein, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each in light of the Offer Conditions.
(e) Merger Sub shall circumstances under which they were made, 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 in accordance with its terms.
(f) Each of misleading. Parent, Merger Sub SUB and the Company agrees each shall promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become (or shall have become known to be) false or misleading in any material respect. Parent respect and Merger Sub have used, and SUB shall use, their reasonable best efforts take all necessary steps to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company laws and its counsel 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 given 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 reasonable opportunity to review particular date shall remain true and comment on any change correct as of that date; and Parent and SUB shall have been furnished with a certificate of HK to the Schedule TO effect of the matters referred to above (and only excepting the Offer Documents each time before any such document is filed 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 SECdate of consummation of the Offer, and Parent and Merger Sub SUB shall give reasonable have been furnished with a certificate of HK to that effect executed by its Chairman in form and good faith consideration 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 comments made such condition (including the termination of this agreement by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (iSUB or Parent) any comments or other communications, whether written may be waived by SUB or oral, that Parent, Merger Sub in whole or their counsel may receive 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 the SEC time to time. Any determination by SUB or its staff Parent with respect to any of the Schedule TO or Offer Documents promptly after receipt conditions referred to (including, without limitation, the satisfaction of those comments or other communications and (iisuch conditions) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 final and Merger Sub or their counsel in any discussions or meetings with binding on the SECparties.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Huffman Koos Inc)
The Offer. (a) Prior 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, Merger Sub 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 (ia "HOLDCO") commenced 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 date of such commencement, the “Offer Commencement Date”"HOLDCO ALTERNATIVE"), (ii) filed with provided that the SEC a Tender Offer Statement on Holdco Alternative will only be available to any particular Shareholder if the terms and conditions which are set out in Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments C are satisfied or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities lawswaived.
(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 Annex I hereto (the “Offer Conditions”)Schedule A annexed hereto. Merger Sub expressly reserves the right to waive any The Offeror agrees that provided all of the Offer Conditions and to make any change in the terms of or 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 thatthat the Offeror will not, without the prior written consent of the Company, Merger Sub shall not:
(i) waive or change increase the Minimum Condition (as defined in Annex I);
Tender Condition, (ii) decrease the Offer Price;
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 pursuant to Section 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 paid satisfied;
(iii) the Board of Directors shall have prepared and approved in final form, printed for distribution to Shareholders and delivered to the OfferOfferor for mailing with the Bid Circular a directors' circular (the "DIRECTORS' CIRCULAR"), which circular shall contain a unanimous recommendation that Shareholders accept the Offer and a copy of the fairness 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) decrease no cease trade order, injunction or other prohibition at Law shall exist against the number of Company Offeror making the Offer or taking up or paying for Shares sought in and Holdco Shares deposited under the Offer;
(v) impose additional Offer Conditions neither the Company nor the Offeror shall have received any notice (written or other requirements 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 Offerfederal or provincial Canada student loan program, will be suspended or revoked;
(vi) otherwise amendthe Offeror shall have received all waivers, modify rulings or supplement any orders necessary for the making of the Offer Conditions or terms 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 the equivalent provisions of the securities laws of the other 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 all respects at the time of the making of the Offer; and
(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 in a manner that adversely affects, unless the failure to be true or could correct has not had or would not reasonably be expected to adversely affecthave, a 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 holders 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 Shares; oror 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;
(viix) extend 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 otherwise change the expiration date indirectly, at least 66 2/3% of the Offer in outstanding Shares on a manner other than as contemplated by this Agreement.fully-diluted basis;
(cxi) Unless extended 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 accordance with the terms event that the escrow agreement to be entered into pursuant to the indemnity agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 1234512 Ontario Inc., Golconda Inc., the Company, the Parent and the Offeror (substantially in the form delivered to such parties) has not been executed and delivered at the time of the entering into of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions parties (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the OfferOfferor, the “Acceptance Time” Parent and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Subescrow agent thereunder) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent executed and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any delivered such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECescrow agreement.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Prior to the date of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided Bidco undertakes that, without the prior written consent of the Company, Merger Sub shall not:
(i) waive 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 a copy to C.S. First Boston Limited as financial advisers to Bidco) Bidco will not:
(A) declare, decide or change accept any percentage below 50 percent plus one Share for the Minimum Condition purposes of any of the conditions set out in paragraph (a) of Appendix 1 to the Press Release;
(B) take or permit to be taken any step as defined a result of which the offer price under the Offer is, or may be required to be, increased beyond the level agreed between Bidco and the Banks from time to time;
(C) issue any press release or other publicity which makes reference to the Facilities, the Arranger, the Agent or to some or all of the Banks unless the publicity is required by law or by the Code (in Annex Iwhich case Bidco shall notify the Agent thereof as soon a practicable upon becoming aware of the requirement);
(ii) decrease in all material respects relevant in the context of the Offer Priceand the Preference Share Offer, it will comply with the Code (subject to any waivers granted to the Panel), the Financial Services Act 1986, the Companies Act 1▇▇▇ ▇▇▇ ▇ll other applic▇▇▇▇ ▇▇▇tutes, laws and regulations;
(iii) change it will keep the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements Agent informed as to the Offer;
(vi) otherwise amendstatus of an progress with respect to the Offer and the Preference Share Offer and in particular will from time to time and promptly upon request, modify or supplement any give to the Agent for the Banks reasonable details as to the current level of acceptances of the Offer Conditions or terms of and the Preference Share Offer, and such other matters relevant to the Offer in and the Preference Share Offer as the Agent may reasonably request. Bidco will also promptly deliver to the Agent a manner that adversely affects, 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 expected construed to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date 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 manner other than result of non-satisfaction of that condition or of the conditions as contemplated by this Agreementto acceptances (as set out in paragraph (a) of Appendix 1 to the Press Release) and that such lapsing will not give rise to a breach of the 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 the conditions (c) Unless extended pursuant and (d) (as set out Appendix 1 to the Press Release), Bidco shall disclose to the Agent any and all conditions attaching to respectively, the announcement by the U.K. Office of Fair Trading (in accordance with the case of condition (c)) or the indication by the Director General (in the case of condition (d)).
(ii) In relation to condition (e) (as set out in such Appendix) Bidco shall disclose to the Agent the terms of this Agreement, all undertakings and assurances sought by the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right Director General as referred to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are therein and proposed to be satisfied at the Acceptance Time) shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Actgiven.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub 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 Sub or their counsel in any discussions or meetings with the SEC.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
Appears in 1 contract
Sources: Term Loan and Revolving Facility Agreement (Calenergy Co Inc)
The Offer. (a) Prior to the date of Provided that this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I hereto (the “Offer Conditions”). Merger Sub expressly reserves the right to waive 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, Merger Sub shall not:
(i) waive or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the number of Company Shares sought in the Offer;
(v) impose additional Offer Conditions or other requirements to the Offer;
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or could reasonably be expected to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) from time to time if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) Agreement shall not have been satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by applicable Legal Requirement. If any of the Offer Conditions is not satisfied or waived on any scheduled expiration date of the Offer, Merger Sub shall extend the Offer, if, in the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected to be satisfied, from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend the Offer beyond the earlier of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) terminated in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject Article IX, and subject to the terms and conditions set forth in this Agreement and to the prior satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer and (ii) all Company Shares validly tendered in the Subsequent Offering Period (the time at which Company Shares are first accepted for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (to the extent permitted hereunder) by Parent or Merger Sub, of each of the Offer Conditions.
(e) Merger Sub 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 in accordance with its terms.
(f) Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information waiver is permitted by the GRAMF) of the conditions set forth in Annex II hereto and Section 4.2(c), as promptly as practicable, Holdco shall have become (or shall have become known to because another direct or indirect wholly owned Subsidiary of Holdco to) false or misleading in any material respect. Parent and Merger Sub have used, and shall use, their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and file the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or other communicationsthe French Financial Market Authority (AUTORITE DES MARCHES FINANCIERS) (the "AMF") within the meaning of the General Rules of the AMF, whether written or oral, that Parent, Merger Sub or their counsel as may receive be amended from time to time from (the SEC or its staff with respect "GRAMF", which term shall be deemed to include any other relevant rules, instructions and/or recommendations of the Schedule TO or Offer Documents promptly after receipt of those comments or other communications AMF), and (ii) Belgian Banking, Finance, and Insurance Commission (COMMISSION BANCAIRE, FINANCIERE, ET DES ASSURANCES) (the "CBFA"). Following approval by the AMF of the terms of the Offer, the Tender Offer Prospectus filed by Holdco (NOTE D'INFORMATION) and the Tender Offer Prospectus filed by Euronext (NOTE EN REPONSE), Holdco shall commence, within the meaning of the GRAMF and the relevant Belgian regulations, the Offer to exchange each Euronext Share for 0.98 of a reasonable opportunity 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 participate receive in the response Offer (including in any subsequent offering period (PERIODE DE REOUVERTURE DE L'OFFRE)), in lieu of Parent 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 each may be adjusted pursuant to this Section 1.
1. In the event that Holdco shall cause a Subsidiary of Holdco to file and Merger Sub commence the Offer, each reference to those comments Holdco in this Article I and to provide comments on that response (to which reasonable ANNEXES II and good faith consideration III shall be given)deemed, including 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 participating with Parent and Merger Sub or their counsel in any discussions or meetings with Euronext of the SECSpecial Euronext Distribution.
(gb) Parent shall cause Subject to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase Section 1.1(h), each Euronext Share accepted by Holdco pursuant to the 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 Euronext Share may elect to receive in the Offer for each Euronext Share tendered by such holder in the Offer, in lieu of the Mixed Offer Consideration, either:
(i) a number of shares of Holdco Common Stock (the "STOCK ELECTION AMOUNT") equal to the sum of (A) Standard Stock Amount and (B) the quotient obtained by dividing the Standard Cash Amount by the Pre-Offering Stock Price (such consideration, the "STOCK ELECTION CONSIDERATION" and persons who shall cause Merger Sub have tendered their Euronext Shares in this offer (OFFRE D'ECHANGE SUBSIDIAIRE) for the Stock Election Consideration are referred to performas having made a "STOCK ELECTION"); or
(ii) an amount in cash (the "CASH ELECTION AMOUNT"), on without interest, equal to the sum of (A) the Standard Cash Amount and (B) the product obtained by multiplying the Standard Stock Amount by the Pre-Offering Stock Price (such consideration, the "CASH ELECTION CONSIDERATION" and persons who shall have tendered their Euronext Shares in this offer (OFFRE D'ACHAT SUBSIDIAIRE) for the Cash Election Consideration are referred to as having made a timely basis, all "CASH ELECTION").
(c) For purposes of Merger Sub’s obligations under this Agreement.Section 1.1:
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The Offer. (a) Prior to the date Provided that this Agreement shall not have been terminated in accordance with its terms and none of this Agreement, Merger Sub (i) commenced the Offer (the date of such commencement, the “Offer Commencement Date”), (ii) filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that included the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) caused the Offer Documents to be disseminated to holders of Company Shares to the extent required by applicable federal securities laws.
(b) The Offer is subject only to the conditions set forth in Annex I A hereto shall have occurred or be continuing, Parent shall cause Merger Sub to, and Merger Sub shall, commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five (5) Business Days after the date hereof. The obligation of Merger Sub to accept for payment Shares tendered pursuant to the Offer shall be subject to (i) the condition that at least the number of Shares that when added to Shares already owned by Parent and its direct and indirect wholly owned Subsidiaries, if any, shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of any outstanding options or warrants which are vested as of the date hereof or are capable of vesting during the ninety (90) day period following the consummation of the Offer and have an exercise price of $10.00 per Share or less) shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the “Offer Conditions”)"Minimum Condition") and (ii) there shall not have occurred or be continuing any of the conditions set forth in Annex A hereto. Merger Sub Parent expressly reserves the right to waive any of such condition, to increase the Offer Conditions Per Share Amount, and to make any change other changes in the terms and conditions of or conditions to the Offer; provided thatprovided, however, that no change may be made by Parent without the prior written consent of the Company, Merger Sub shall not:
Company which (iA) waive decreases the Per Share Amount or change the Minimum Condition (as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change changes the form of consideration to be paid payable in the Offer;
, (ivB) decrease waives the Minimum Condition, (C) reduces the maximum number of Company Shares sought to be purchased in the Offer;
, (vD) impose additional Offer Conditions or other requirements imposes conditions to the Offer;
Offer in addition to those set forth in Annex A hereto or (viE) otherwise amend, modify or supplement amends any of the Offer Conditions or terms term of the Offer in a any other manner that adversely affects, or could reasonably be expected materially adverse to adversely affect, the holders of the Company Shares; or
(vii) extend or otherwise change the expiration date of the Offer in a manner other than as contemplated by this Agreement.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the twentieth Business Day after the Offer Commencement Date. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, Merger Sub shall have the right to (i) extend the Offer beyond the scheduled expiration date, which shall be twenty (i20) from time to time Business Days following the commencement of the Offer, if, at the scheduled or extended expiration date of the Offer, any of the Offer Conditions (other than conditions which by their nature are to be satisfied at the Acceptance Time) Merger Sub's obligation to accept for payment Shares shall not have been be satisfied or waived, until such Offer Conditions are satisfied or waived (if permitted hereunder) and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the "SEC"), or the staff thereof thereof, applicable to the Offer Offer, or any period otherwise required by applicable Legal Requirement. If any of (iii) extend the Offer Conditions is for an aggregate period of not satisfied more than ten (10) Business Days beyond the latest applicable date that would otherwise be permitted under clause (i) or waived on any scheduled expiration date (ii) of the Offer, Merger Sub shall extend the Offerthis sentence, if, in as of such date, all of the determination of Parent, such Offer Condition or Offer Conditions could reasonably be expected conditions to be satisfied, from time Merger Sub's obligations to time until such Offer Condition or Offer Conditions accept for payment Shares are satisfied or waived; provided that, in each case, (i) Merger Sub shall not be required to extend but the Offer beyond the earlier number of (x) the End Date and (y) the date that is 30 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Sub and (ii) no such individual extension of the Offer shall be for a period of more than five Business Days. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver (if permitted hereunder) of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, consummate the Offer in accordance with its terms and accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer (regardless of Subsequent Offering Periods), all Company Shares validly tendered and not withdrawn pursuant to the Offer totals less than ninety percent (90%) of the issued and (ii) all Company outstanding Shares validly tendered on a fully diluted basis. The Per Share Amount shall, subject to any applicable withholding of Taxes, be net to the sellers of the Shares in cash, upon the Subsequent Offering Period (terms and subject to the time at which Company Shares are first accepted conditions of the Offer. Subject to the terms and conditions of the Offer and this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment under the Offer, the “Acceptance Time” and the date on which Company Shares are first accepted for payment under the Offer, the “Acceptance Date”). The obligation of Merger Sub (and of Parent to cause Merger Sub) to accept for payment, and pay the Offer Price for, each Company Share for all Shares validly tendered and not properly withdrawn pursuant as promptly as practicable following satisfaction of the Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the Offer applicable rules of the SEC and the terms and conditions of the Offer, Merger Sub expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Laws. Any such delay shall be subject only effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If the payment equal to the satisfactionPer Share Amount in cash is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of such amount to a Person other than the registered holder of the certificate surrendered, or waiver (shall have established to the extent permitted hereunder) by Parent or Merger Sub, satisfaction of each of the Offer Conditions.
(e) Merger Sub shall that such Taxes either have been paid or are not terminate the Offer prior to any scheduled expiration date without the prior written consent of the Company except in the event that applicable. If this Agreement is terminated in accordance with its termsby Parent or by the Company, Parent shall cause Merger Sub to, and Merger Sub shall, terminate promptly the Offer.
(fb) As promptly as reasonably practicable on the date of commencement of the Offer, Parent shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Each of Parent, Merger Sub and the Company agrees promptly to correct promptly any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. , and Parent and Merger Sub have used, and shall use, their reasonable best efforts further agree to take all steps necessary to cause the Schedule TO 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 Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on any change to the Schedule TO and the Offer Documents each time before any prior to such document is documents being filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration SEC or disseminated to any comments made by the Company and its counselholders of Shares. Parent and Merger Sub shall provide the Company and its counsel with (i) copies of any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of those such comments or other communications and (ii) shall provide the Company and its counsel with a reasonable opportunity to participate in the formulation of the response of Parent and or Merger Sub 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 Sub or their counsel in any discussions or meetings with the SECsuch comments.
(g) Parent shall cause to be provided to Merger Sub all of the funds necessary to purchase any Company Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
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