The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written 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) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Bison Acquisition Corp), Merger Agreement (Entertainment Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X Section 7.1 hereof and so long as none nothing shall have occurred that would result in a failure to satisfy any of the events conditions set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)I hereto, as promptly as practicablepracticable after the date hereof, but in no event later than five (5) business days following the fifth business day after public announcement of the date terms of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub toBuyer to commence and Buyer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the Offer "Exchange Act")) an offer to purchase all of the issued and outstanding shares of the Company Common Stock at a price of $7.00 per share (the "Offer Price. ") net to the seller in cash, but subject to any withholding required by law (the "Initial Offer").
(b) The initial expiration date for the Initial Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub conditions set forth in their sole discretion; PROVIDED, HOWEVER, that Merger Sub Annex I hereto. Buyer shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth hereincontemplated hereby, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written 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) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms or conditions of the Initial Offer which that is materially adverse to the holders of the Company Common Stock in any material respect, decrease the Offer Price or the Minimum Condition or impose material conditions to the Initial Offer other than those set forth in Annex I hereto (it being agreed that a waiver by Buyer of any condition, in its sole discretion, shall not be deemed to be adverse to the holders of the Company Common Stock. Notwithstanding ); provided that:
(i) if on any scheduled expiration date of the foregoing sentenceInitial Offer all conditions to the Initial Offer shall not have been satisfied or waived, Merger Sub the Initial Offer may, but need not, be extended from time to time without the consent of the Company, Company for such period of time as is reasonably expected by Buyer to be necessary to satisfy the unsatisfied conditions;
(Aii) extend the Offer, if at Initial Offer may be extended by Buyer without the then scheduled expiration date consent of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer Company 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 applicable to the Initial Offer. Notwithstanding the foregoing, ; and
(xiii) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to at any scheduled expiration date of the Initial Offer all conditions to the Initial Offer shall have been satisfied but less than a number of shares of Company Common Stock that, together with the number of shares of Company Common Stock owned by Parent and Buyer, represents ninety percent (90%) of the outstanding shares of Company Common Stock, on a fully-diluted basis, shall have been tendered into the Initial Offer, the Regulatory Conditions Buyer shall be entitled to (as defined in Annex Abut not required to) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Initial Offer from time to time, subject to time without the right consent of Parent, Merger Sub or the Company in order to terminate this Agreement permit Buyer to solicit additional shares to be tendered into the Initial Offer. Buyer shall, unless Buyer shall have in its sole discretion exercised its right to extend the termination date of the Initial Offer pursuant to the terms hereof. Upon this Section 1.1(b), on the terms and subject to the prior satisfaction or waiver of the conditions of the Initial Offer, Merger Sub shallaccept for payment and purchase, and Parent shall cause Merger Sub toas soon as permitted under the terms of the Initial Offer, promptly purchase all shares of the Company Common Stock which are validly tendered on or and not withdrawn prior to the expiration date of the Initial Offer. It is agreed that the conditions to the Initial Offer are solely for the benefit of Buyer and not withdrawnmay be asserted by Buyer regardless of the circumstances giving rise to any such condition (including any action or inaction by Buyer) or may, but need not, be waived by Buyer, in whole or in part at any time and from time to time, in its sole discretion, except with respect to the Minimum Condition.
(c) The Initial Offer shall be made by means of an offer to purchase (the "Offer to Purchase") that is subject to the conditions set forth in Annex I hereto. Parent shall provideAs soon as practicable on the date of commencement of the Initial Offer, or cause to be providedBuyer (and, to Merger Sub the extent required by law, Parent) shall file with the SEC a Tender Offer Statement on a timely basis Schedule 14D-1 (together with all funds necessary supplements and amendments thereto, the "Schedule 14D-1" or the "Offer Documents"). The Offer to accept Purchase shall provide for payment, and pay for, all shares an initial expiration date of Common Stock that Merger Sub becomes obligated to purchase pursuant to twenty (20) business days (as defined in Rule 14d-1 under the Offer.Exchange Act)
Appears in 2 contracts
Samples: Merger Agreement (General Electric Co), Merger Agreement (Showpower Inc)
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)---------- Agreement, as promptly as practicable, but in no event later than the fifth five business day days after the date public announcement of this Agreementthe Offer, Parent and Merger Acquisition Sub shall, and Parent shall cause Merger commence the Offer. The obligation of Acquisition Sub to, to commence the Offer at the Offer Price. The initial expiration date and accept for payment, and pay for, any shares of Company Common Stock or Preference Stock tendered pursuant to the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, conditions set forth in Exhibit A (any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in partpart by Acquisition Sub in its sole discretion) and to the terms and conditions of this Agreement. Parent and Merger Acquisition Sub expressly reserve reserves the right to modify the terms of the Offer; PROVIDED HOWEVER, that except that, without the prior written consent of the Company, Merger Acquisition Sub shall not (i) reduce the number of shares of Company Common Stock or Preference Stock to be purchased in the Offer, (ii) reduce the Common Stock Offer Price or the Preference Stock Offer Price, (iii) modify or add to the Tender Offer Conditionsconditions set forth in Exhibit A, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vvi) make amend any other change in the terms term of the Offer which is materially in a manner adverse in any material respect to the holders of Company Common Stock or Preference Stock. Notwithstanding the foregoing sentenceforegoing, Merger Acquisition Sub may, without the consent of the Company, (Ai) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to exceed 20 business days, if at the then any scheduled expiration date of the Offer Offer, any of the conditions to Merger Acquisition Sub's obligations obligation to purchase the accept for payment, and pay for, shares of Company Common Stock have or Preference Stock shall not been be satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such time as such conditions will be satisfiedare satisfied or waived, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (Cii) 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. Notwithstanding the foregoing, Offer and (xiii) terminate the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant prejudice to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representationsits and Parent's rights under this Agreement, warrantiesincluding to proceed with the Merger in accordance with, covenants or agreements set forth in and subject to the terms and conditions of, this Agreement. Notwithstanding any thing Subject to the contrary in terms and conditions of the Offer and this Agreement, Parent Acquisition Sub shall accept for payment, and Merger pay for, all shares of Company Common Stock and Preference Stock validly tendered and not withdrawn pursuant to the Offer that Acquisition Sub agree that if immediately prior becomes obligated to any scheduled accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration date of the Offer, subject to compliance with Rule 14e-1(c) under the Regulatory Conditions Exchange Act (as defined in Annex Abelow).
(b) shall not have been satisfied, but at such scheduled expiration On the date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions commencement of the Offer, Merger Parent and Acquisition Sub shallshall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent and Acquisition Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act") and, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Acquisition Sub with respect to information regarding the Company or its subsidiaries or provided by the Company for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Acquisition Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Acquisition Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Acquisition Sub agree to provide the Company and its counsel any comments or requests for additional information Parent, Acquisition Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel an opportunity to participate, including by way of discussion with the SEC or its staff, in the response of Parent and/or Acquisition Sub to such comments.
(c) Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, provide or cause to be provided, provided to Merger Acquisition Sub on a timely basis all the funds necessary to accept for payment, and pay for, all any shares of Company Common Stock and Preference Stock that Merger Acquisition Sub accepts for payment, and becomes obligated to purchase pay for, pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Bird Corp), Merger Agreement (Bi Expansion Ii Corp)
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Agreement, as promptly soon as practicable, but in no event later than five (5) business days from the fifth date hereof, Newco shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase all outstanding shares of Company Common Stock at a price per share of $32.00 net to the seller in cash, without interest, subject only to all of the conditions set forth herein and in Annex I (together with any amendments or supplements thereto, the "Offer"). The per share amount shall be net to the seller in cash, upon the terms and subject to the conditions of the Offer and subject to reduction for any applicable federal, state, local or foreign back-up or other applicable withholding or stock transfer taxes. Subject to the provisions of this Agreement and the conditions set forth in Annex I, Newco shall keep the Offer open until at least midnight, New York City time, on the date twenty (20) business day after days from the date of this Agreementits commencement. As soon as legally permissible after such date and time, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence Newco will accept for payment all shares of Company Common Stock validly tendered pursuant to the Offer at and not withdrawn and pay for all such shares of Company Common Stock as promptly as practicable thereafter, in each case upon the Offer Price. The initial expiration date for terms and subject to the Offer shall be the twentieth business day following the commencement conditions of the Offer. The obligations of Merger Sub Newco to accept for payment and to pay for any shares of Company Common Stock validly tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly conditions set forth hereinin Annex I. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex I.
(b) Newco expressly reserves the right to waive any conditions to the Offer, may be waived by Parent and Merger Sub in whole or in part. Parent part at any time or from time to time, in its sole discretion (other than the conditions set forth in clauses (i) and Merger Sub expressly reserve (iii)(D) of Annex I), to increase the right price per share payable in the Offer, to modify extend the duration of the Offer, or to make any other changes in the terms and conditions of the Offer; PROVIDED HOWEVERprovided, however, that without the prior written consent of the Company, Merger Sub Newco shall not (i) reduce decrease the number price per share of shares of Company Common Stock being offered pursuant to be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in to be paid pursuant to the Offer, (iii) decrease the number of shares of Company Common Stock being sought pursuant to the Offer, (iv) amend or modify any of the conditions to the Offer or set forth in Annex I, (v) make impose any other change in the terms of the Offer which is materially adverse additional conditions to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the CompanyOffer, (Avi) extend the Offer, if all of the Offer conditions are satisfied or waived, or (vii) amend any other term or condition of the Offer. Notwithstanding anything to the contrary contained herein, Newco may, in its sole discretion and without the consent of Company, extend the Offer at any time and from time to time (A) if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock set forth in Annex I have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by applicable law, including, without limitation, any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the its staff thereof applicable to the Offer. Notwithstanding Offer and (C) if all Offer conditions are satisfied or waived but the foregoingnumber of shares of Company Common Stock tendered is less than 90% of the then outstanding number of shares of Company Common Stock, for an aggregate period of not more than 5 business days (xfor all such extensions under this clause (C)) the Offer may not, without the Company's written consent, be extended beyond the latest expiration date of termination that would be permitted under clause (A) or (B) of this Agreement pursuant to Section 10.1(a) and (y) sentence; provided, however, that in the Offer may not, without the Company's prior written consent, be extended event of any extension pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representationsC), warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other all conditions set forth in Annex A (other than I which would have been satisfied if the Minimum Condition) Offer had been consummated on the date of such extension shall then be satisfieddeemed irrevocably waived by Parent and Newco. So long as this Agreement is in effect and the conditions to the Offer have not been satisfied or waived, at the request of the Company, Merger Sub Newco shall extend the Offer from time to time, subject to for an aggregate period of not more than five business days (for all such extensions) beyond the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.originally scheduled expiration
Appears in 2 contracts
Samples: Merger Agreement (Atlas Copco North America Inc), Merger Agreement (Prime Service Inc)
The Offer. (a) Provided that Subject to the conditions of this ---------- Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events including those set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)B hereto, as promptly as practicable, practicable but in no event later than the fifth business day five Business Days after the date of this Agreement, Parent and Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the Offer at within the meaning of the applicable Regulations of the SEC. The obligation of Purchaser to, and of Parent to cause Purchaser to, commence the Offer Price. The initial expiration date or accept for payment, or pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, conditions set forth in Annex B (any of which may be waived by Parent or Merger Sub Purchaser in their its sole discretion; PROVIDEDand reasonable judgment provided that, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company, Purchaser may not -------- waive the Minimum Tender Condition) and to the other provisions of this Agreement. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless initial expiration date of the circumstances giving rise to any such Tender Offer Conditions or, except as shall be the 20th Business Day following the commencement of the Offer (determined using Rule 14d-1(e)(6) under the Exchange Act). Purchaser expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve reserves the right to modify the terms of the Offer; PROVIDED HOWEVER, that except that, without the prior written consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to be purchased in the Offer, (ii) reduce the Offer Priceprice per share of Company Common Stock to be paid pursuant to the Offer, (iii) modify or add to the Tender Offer Conditionsconditions set forth in Annex B in any manner adverse to the holders of shares of Company Common Stock, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vvi) make any other change in the terms of otherwise amend the Offer which is materially in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding the foregoing sentenceforegoing, Merger Sub Purchaser may, without the consent of the Company, (Ai) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligations obligation to purchase the shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived; provided, -------- however, that the expiration date shall not be later than the Termination Date ------- as a result of such extension, (ii) extend the Offer for a period of not more than 10 Business Days beyond the expiration date that would otherwise be permitted under clause (i) of this sentence, if on the date of such extension (x) less than 90% of the Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer and (y) Purchaser has permanently waived all of the conditions to the Offer set forth in Annex B (other than conditions that are not legally capable of being satisfied and conditions that have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all because of the Tender Offer Conditions have been metwillful or intentional action or inaction of the Company), and/or and (Ciii) extend the Offer for any period required by any rule, regulationRegulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. Notwithstanding the foregoingIf, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to on any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each any of the other conditions set forth in Annex A (other B have not been satisfied or waived and such unsatisfied conditions are still capable of being satisfied, the Company may require Purchaser to extend the expiration date of the Offer for a period of not more than 10 Business Days; provided, however, that Purchaser shall not be -------- ------- required to extend the expiration date later than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereofTermination Date. Upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, promptly purchase pay for all shares of Company Common Stock which are validly tendered on or prior and not withdrawn pursuant to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent and Purchaser shall not be required to commence the Offer in any jurisdiction other than the United States of America.
(c) On the date of the commencement of the Offer, Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer ("Schedule 14D-1") which will contain an offer to purchase and form of the -------------- related letter of transmittal (the Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively, the "Offer Documents"). Parent, Purchaser, --------------- and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and Parent and Purchaser 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 of Company Common Stock, in each case, as and to the extent required by applicable federal securities Laws. Parent and Purchaser agree to give the Company and its counsel a reasonable opportunity to review and comment on the Offer Documents prior to the filing of the Offer Documents with the SEC. Purchaser agrees to provide the Company and its counsel in writing with any comments Purchaser and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof.
Appears in 2 contracts
Samples: Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof Section 8.1 and so long as none of the events or conditions set forth in subparagraphs (a) through (d) of Annex A hereto (the "Tender Offer Conditions") I shall have occurred and are be continuing (unless such event shall and not have been waived by Parent or Merger Sub), as promptly as practicablereasonably practicable and, but in no event later than the fifth business day after any event, within ten (10) Business Days of the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, and Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as practicable after the date of this Agreement. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”. Each share of Company Common Stock accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be purchased for cash at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for) any shares of Company Common Stock validly tendered on or prior to the expiration of the Offer (as it may be extended in accordance with this Agreement) and not properly withdrawn shall be subject only to (i) there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the Tender expiration of the Offer Conditions, any of which (as it may be waived extended in accordance with this Agreement) that number of shares of Company Common Stock which, when added to any shares of Company Common Stock owned by Parent or Merger Sub any of its Subsidiaries, represents a majority of the shares of Company Common Stock outstanding on a fully-diluted basis (the “Minimum Condition”), and (ii) the other events or conditions set forth in their sole discretion; PROVIDEDAnnex I. Subject to the terms and conditions of the Offer, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of (and Parent and shall cause Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions orto), except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer promptly after expiration of the Offer; PROVIDED HOWEVERprovided, however, that without the prior written consent of the Company, Merger Sub shall not (i) reduce if on the number initial expiration date of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make on any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then subsequent scheduled expiration date of the Offer (as it may be extended in accordance with this Agreement), any of the events or conditions to the Offer set forth on Annex I shall exist and, subject to the provisions of this Agreement, shall not have been waived by Merger Sub's obligations , Merger Sub expressly reserves the right to purchase (and, in such case, Parent shall cause Merger Sub to), from time to time, extend the shares Offer for additional successive periods of Common Stock have not been up to twenty (20) Business Days per extension (with the length of such periods to be determined by Parent), until all of the conditions set forth in Annex I are satisfied or waivedvalidly waived in order to permit the Acceptance Time to occur, until the third business day after the day and (ii) Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) shall extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof of the SEC applicable to the Offer. Notwithstanding If less than 90% of the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date number of termination outstanding shares of this Agreement Company Common Stock are accepted for purchase pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, Merger Sub may, in its sole discretion (and without the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each consent of the Company or any other Person), elect to provide for one or more subsequent offering periods (of up to twenty (20) Business Days in the aggregate) in accordance with Rule 14d-11 under the Exchange Act. Merger Sub expressly reserves the right from time to time to waive any of the conditions set forth in Annex A I (other than the Minimum ConditionCondition and the condition set forth in subparagraph (e) shall then be satisfiedof Annex I) or to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided that, at without the request prior written consent of the Company, Merger Sub shall extend not decrease the Offer from time Price, change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to timebe purchased in the Offer, subject change, modify or waive the Minimum Condition, impose additional conditions to the right Offer or modify or change any condition to the Offer in a manner materially adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer, reduce the time period during which the Offer shall remain open or, except for any extension required or permitted hereunder, extend or otherwise change the expiration date of the Offer, or amend, modify or supplement any other term of the Offer in any manner adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer.
(b) Subject to the first sentence of Section 2.1(a), as promptly as reasonably practicable and, in any event, no later than the Offer Commencement Date, in order to reflect the execution of this Agreement and the terms hereof, Parent shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which will contain a form of a letter of transmittal (such schedule together with the documents included therein pursuant to which the Offer is made, and any amendments and supplements thereto, the “Offer Documents”). Subject to the Company’s compliance with Section 2.2(c), Parent and Merger Sub shall cause the Offer Documents to be disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 2.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents before they are filed with the SEC. In addition, Parent and Merger Sub shall provide the Company and its counsel with (i) any comments or communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the Company SEC or its staff with respect to terminate the Offer Documents promptly after Parent’s or Merger Sub’s, as the case may be, receipt of such comments, and (ii) a reasonable opportunity to participate in the response of Parent or Merger Sub to those comments and to provide comments on that response.
(c) In the event this Agreement is terminated pursuant to the terms hereof. Upon the terms and subject Section 8.1 prior to the conditions Acceptance Time, Parent and Merger Sub shall promptly terminate the Offer without accepting any shares of Company Common Stock previously tendered and Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof.
(d) If any portion of the Offer Price is to be paid to a Person other than the Person in whose name the tendered shares of Company Common Stock are registered, the amount of any stock transfer or other similar Taxes (whether imposed on the registered holder(s), or such other Person, or otherwise) payable on account of such transfer to such other Person shall be deducted from the Offer Price for the exchange of such shares of Company Common Stock in the Offer, unless evidence satisfactory to Merger Sub shallof the payment of such Taxes, and or exemption therefrom, is submitted.
(e) Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, provide or cause to be provided, provided to Merger Sub on a timely basis all the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Superior Well Services, INC), Merger Agreement (Nabors Industries LTD)
The Offer. (a) Provided As promptly as practicable following execution of this Agreement, the Parent shall amend the Existing Offer: (i) to provide that this Agreement shall not have been terminated the consideration to be paid per share of Company Common Stock pursuant to the Offer will be as calculated in accordance with Article X hereof and so long as none of the events set forth in Annex A II hereto (the "Tender Offer ConditionsConsideration"); (ii) shall have occurred to designate the Purchaser as the offeror and are continuing to set November 29, 2001 (unless such event shall have been waived by Parent or Merger Subthe "Initial Expiration Date"), as promptly as practicable, but in no event later than the fifth business day after expiration date for the date Offer; and (iii) otherwise to reflect the terms and conditions of this Agreement. For purposes of this Agreement, Parent and Merger Sub shallthe term "business day" shall mean any day, other than Saturday, Sunday or a federal holiday, and Parent shall cause Merger Sub to, commence consist of the Offer at the Offer Pricetime period from 12:01 a.m. through 12:00 midnight Eastern time. The initial expiration date for the Offer shall be the twentieth business day following the commencement obligation of the Offer. The obligations of Merger Sub Purchaser to accept for payment and to pay for any shares of Company Common Stock (including the related Company Rights) tendered pursuant to the Offer shall be subject only to the Tender Offer Conditions, any of which may condition that there shall be waived validly tendered (other than by Parent or Merger Sub guaranteed delivery where actual delivery has not occurred) in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify accordance with the terms of the Offer; PROVIDED HOWEVER, that without the prior written 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) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any and not withdrawn, a number of the conditions to Merger Sub's obligations to purchase shares of Company Common Stock that, together with the shares of Company Common Stock have not been satisfied or waivedthen owned by the Parent and/or the Purchaser, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to represents at least a maximum of an aggregate of 30 days beyond the first day all majority of the Tender Offer Conditions have been met, and/or shares of Company Common Stock outstanding on a fully diluted basis (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable after giving effect to the Offer. Notwithstanding conversion or exercise of all outstanding options, warrants and other rights to acquire, and securities exercisable or convertible into, Company Common Stock, whether or not exercised or converted at the foregoingtime of determination, other than potential dilution attributable to the Company Rights) (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a"Minimum Condition") and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of satisfaction or waiver by the Offer, the Regulatory Conditions (Purchaser as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each permitted hereunder of the other conditions set forth in Annex A (other than I hereto. Without limiting the Minimum Condition) shall then be satisfiedforegoing, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration effective upon Consummation of the Offer (as defined in Section 1.4), the holder of such Company Common Stock (including the related Company Rights) will sell and assign to the Purchaser all right, title and interest in and to all of the shares of Company Common Stock tendered (including, but not withdrawn. Parent shall providelimited to, or cause such holder's right to be provided, to Merger Sub on any and all dividends and distributions with a timely basis all funds necessary to accept for paymentrecord date before, and pay fora payment date after, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerscheduled or extended expiration date).
Appears in 2 contracts
Samples: Merger Agreement (Northrop Grumman Corp /De/), Merger Agreement (Newport News Shipbuilding Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof its terms and so long as provided that none of the events set forth in clauses (a)-(c) of Annex A shall have occurred and be continuing, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) a cash tender offer to purchase all of the issued and outstanding shares of the Company Common Stock for $7.20 U.S. Dollars per share of Company Common Stock (such amount, or any greater amount per share of Company Common Stock paid pursuant to the offer, the “Per Share Amount” and such offer, as it may be amended from time to time pursuant to the terms hereof, the “Offer”) no earlier than fourteen (14) days and no later than twenty (20) days after the date hereof (unless such date is not a business day, in which case the first business day after the date that is fourteen (14) days or twenty (20) days, as applicable, after the date hereof). Parent shall cause Merger Sub to accept for payment, and Merger Sub shall accept for payment, all shares of the Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any event not more than the fourth business day) following the Expiration Date (as defined below).
(b) The obligation of Merger Sub to accept for payment, purchase and pay for any shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) shall only be subject to the satisfaction or waiver pursuant to the terms hereof of (i) the condition (the “Minimum Condition”) that at least that number of shares of Company Common Stock validly tendered and not withdrawn prior to the Expiration Date, when added to any shares of Company Common Stock already owned by Parent or any of its subsidiaries, if any, shall be equal to or greater than fifty and one tenth percent (50.1%) of the sum of the shares of Company Common Stock then outstanding on a fully-diluted basis (including as outstanding only options that are vested as of that date or may vest prior to the Merger Outside Date) and (ii) the other conditions set forth in Annex A hereto (the "conditions described in clauses (i) and (ii) are collectively referred to as the “Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub”), as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve reserves the right (but shall not be obligated) at any time or from time to modify time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition, which may not be amended or waived), to increase the Per Share Amount payable in the Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDED HOWEVER, provided that without the prior written consent of the CompanyCompany no change may be made that decreases the Per Share Amount (except as provided in Section 1.1(h)), 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) modify or add to the Tender Offer Conditions, (iv) change changes the form of consideration payable in the Offer or (v) make any other change in the terms of Offer, imposes conditions to the Offer in addition to the Tender Offer Conditions, decreases the number of shares of Company Common Stock subject to the Offer, reduces the time period during which is materially the Offer shall remain open, or modifies or amends the Offer in any manner adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, Company Shareholders.
(Ac) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time, at the end of the later of (i) the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) or (ii) May 13, 2011 (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of Section 1.1(d) or as required by Applicable Laws (defined in Section 9.3) or the interpretations of the Securities and Exchange Commission (the “SEC”) (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, Merger Sub shallas so extended, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offermay expire).
Appears in 2 contracts
Samples: Merger Agreement (Coleman Cable, Inc.), Merger Agreement (Technology Research Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as As promptly as practicable, practicable (but in no event later than the fifth five business day days after the date public announcement of this Agreementthe execution hereof), Parent and Merger Sub shallshall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and Parent shall cause Merger Sub tothe rules and regulations promulgated thereunder (collectively, commence the Offer "Exchange Act")) a tender offer (the "Offer") for all of the outstanding shares of Company Common Stock (including the Company Preferred Rights) at a price of $20 per share of Company Common Stock, net to the seller in cash (such price, or any such higher price per share as may be paid in the Offer, being referred to herein as the "Offer Price. The initial "), subject to there being validly tendered and not withdrawn prior to the expiration date for the Offer shall be the twentieth business day following the commencement of the Offer, that number of shares of Company Common Stock (excluding shares of Company Common Stock held in the Company's treasury) which represents at least a majority of the Company Common Stock outstanding on a Fully Diluted Basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto, and shall consummate the Offer in accordance with its terms ("Fully Diluted Basis" means issued and outstanding Company Common Stock and Company Common Stock subject to issuance under the Existing Options). The obligations of Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written 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) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawnwithdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex A hereto. Parent The Offer shall providebe made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Merger Sub shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of shares of Company Common Stock sought, or cause amend any other condition of the Offer in any manner adverse to be the holders of the Company Common Stock without the prior written consent of the Company; provided, however, that if on the initial scheduled expiration date of the Offer which shall be twenty business days after the date the Offer is commenced, the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act to have expired or been terminated, Merger Sub shall extend the expiration date from time to time until two business days after the expiration of the waiting period under the HSR Act. Merger Sub shall, on a timely basis all funds necessary the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment, and pay for, all shares of payment Company Common Stock tendered as soon as it is legally permitted to do so under applicable law; provided, however, that Merger Sub becomes obligated if, immediately prior to purchase the initial expiration date of the Offer (as it may be extended), the Company Common Stock tendered and not withdrawn pursuant to the Offer equals less than 90% of the outstanding Company Common Stock, Merger Sub may extend the Offer two times for a period not to exceed ten business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer.
(b) As soon as practicable on the date the Offer is commenced, Parent and Merger Sub shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information furnished by the Company to Parent or Merger Sub, in writing, expressly for inclusion in the Offer Documents. The information supplied by the Company to Parent or Merger Sub, in writing, expressly for inclusion in the Offer Documents and by Parent or Merger Sub to the Company, in writing, expressly for inclusion in the Schedule 14D-9 will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Each of Parent and Merger Sub will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to the Stockholders, in each case as and to the extent required by applicable federal securities laws. Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and Parent and Merger Sub will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to the Stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given the opportunity to review the Schedule 14D-1 before it is filed with the SEC. In addition, Parent and Merger Sub will provide the Company and its counsel, in the form in which they are received, with any comments, whether written or oral, Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Walbro Corp), Agreement and Plan of Merger (Ti Group PLC)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long VIII, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as none of the events set forth in Annex A hereto amended (the "Tender Exchange Act")) the Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicablereasonably practicable after the date hereof, but in no event later than the fifth five business day days after the initial public announcement on the date hereof or the following day of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, Sub's intention to commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations obligation of Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall only be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the condition (the "Minimum Condition") that at least the number of shares of Company Common Stock (together with the shares of the Company Common Stock, if any, then owned by Parent or Merger Sub) constituting a majority of the then outstanding shares of Company Common Stock on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver of the other conditions set forth in Exhibit A. As used herein, "fully diluted basis" means issued and outstanding shares of Company Common Stock and shares of Company Common Stock subject to issuance under vested Options (as defined in Section 2.06(c)) and shares of Company Common Stock subject to issuance upon exercise of outstanding warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or securities convertible or exchangeable for such capital stock, but shall not include unvested Options. Merger Sub expressly reserves the right, subject to compliance with the Exchange Act, to waive any 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 unless Parent and Merger Sub shall have obtained the prior written approval of the Company, no change may be made in the Offer which (i) decreases the Per Share Amount, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of shares of Company Common Stock to be purchased in the Offer, (iiiv) reduce modifies the conditions to the Offer Price, (iii) modify set forth in Exhibit A or add imposes conditions to the Tender Offer Conditionsin addition to those set forth in Exhibit A, (iv) change the form of consideration payable in the Offer or (v) make any other change modifies or waives the Minimum Condition or (vi) except as provided in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentenceSection 1.01(b), Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to extends the Offer. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to timeThe Per Share Amount shall, subject to the right applicable withholding of Parenttaxes, Merger Sub or the Company to terminate this Agreement pursuant be net to the terms hereof. Upon seller in cash, upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.of
Appears in 2 contracts
Samples: Merger Agreement (Superior Telecom Inc), Merger Agreement (Superior Telecom Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof VII, then (i) not later than the first Business Day after execution of this Agreement, Parent and so long as none the Company shall issue separate public announcements regarding the execution of the events set forth in Annex A hereto this Agreement and (the "Tender Offer Conditions"ii) shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Sub shall, as promptly soon as practicable, but in no event later than the fifth business day five Business Days from and after the date of this Agreementsuch announcement, Parent and Merger Sub shall, and Parent shall cause Merger Sub toincluding the date of announcement as the first Business Day in accordance with Rule 14d-2 under the Exchange Act, commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer to purchase all of the outstanding shares of Company Common Stock at the Offer PricePrice Per Share. The initial expiration date for of the Offer shall be the twentieth business day following Business Day from and after the date the Offer is commenced, including the date of commencement of as the Offerfirst Business Day in accordance with Rule 14d-2 under the Exchange Act. The obligations Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) there being at least that number of shares of Company Common Stock representing a majority of the Tender total issued and outstanding shares of Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer Conditions(the "MINIMUM SHARES") validly tendered and not withdrawn prior to the expiration of the Offer (the "MINIMUM CONDITION") and (ii) the satisfaction of the other conditions set forth in Annex A hereto, any of which conditions may be waived by Parent or Merger Sub in their its sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for Company agrees that no shares of Company Common Stock held by the sole benefit Company or any of Parent and its Subsidiaries will be tendered to Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise pursuant to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without .
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall not will (i) reduce decrease the number of shares of Common Stock to be purchased Price Per Share payable in the Offer, (ii) reduce decrease the number of shares of Company Common Stock sought pursuant to the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer set forth in ANNEX A hereto or impose additional conditions to the Offer, (iv) change the expiration date of the Offer or (v) make otherwise amend, add or waive any other change in the terms term or condition of the Offer which is materially in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding the foregoing sentence; PROVIDED, Merger Sub mayHOWEVER, without the consent of the Company, (A) extend the Offer, that if at the then on any scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock Offer have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be may, and at the earliest date on which such conditions will be satisfiedrequest of the Company shall, (B) extend the Offer from time to time up to a maximum time, extend the expiration date of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation up to 5 additional Business Days (but in no event shall Merger
(1) the conditions to the Offer shall have been satisfied or position waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent more than 50% but less than 90% of the SEC or total issued and outstanding shares of Company Common Stock on a fully diluted basis; PROVIDED, HOWEVER, that in no event shall the staff thereof applicable to extension permitted under the Offer. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and foregoing clause (y) exceed, in the Offer may notaggregate, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement10 Business Days. Notwithstanding any thing anything to the contrary in this Agreement, Parent may extend the Offer during (but only to the end of) the period in which the Company is attempting to cure a breach pursuant to Section 7.1(h). Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to timewill, subject to the right terms and conditions of Parentthis Agreement, Merger Sub use their best efforts to consummate the Offer. Assuming the prior satisfaction or waiver of all the Company to terminate this Agreement pursuant conditions to the terms hereof. Upon the terms Offer set forth in ANNEX A hereto, and subject to the terms and conditions of the Offerthis Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase accept for payment and pay for, in accordance with the terms of the Offer, all shares of Company Common Stock which are validly tendered on or prior and not withdrawn pursuant to the Offer as soon as permitted under applicable law, recognizing that the parties wish to close as expeditiously as possible following expiration or termination of the Offer and not withdrawnwaiting period under the HSR Act. Parent shall provide, or cause to be provided, to Merger Sub Sub, on a timely basis all basis, the funds necessary to accept for payment, and pay for, all purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Rental Service Corp), Merger Agreement (Rental Service Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as As promptly as practicable, practicable (but in no event later than the fifth five business day days after the date public announcement of this Agreementthe execution hereof), Parent and Merger Sub shallAcquisition shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and Parent shall cause Merger Sub tothe rules and regulations promulgated thereunder (collectively, commence the Offer "Exchange Act")) a tender offer (the "Offer") for all of the outstanding shares of Company Common Stock (including the Rights) at a price of $15.50 per share of Company Common Stock, net to the seller in cash (such price, or any such higher price per share as may be paid in the Offer, being referred to herein as the "Offer Price. The initial "), subject to there being validly tendered and not withdrawn prior to the expiration date for the Offer shall be the twentieth business day following the commencement of the Offer, that number of shares of Company Common Stock which represents at least a majority of the Company Common Stock outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto, and shall consummate the Offer in accordance with its terms ("fully diluted basis" means issued and outstanding Company Common Stock and Company Common Stock subject to issuance under warrants and outstanding employee stock options). The obligations of Merger Sub Acquisition to accept for payment and to pay for any shares of Company Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written 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) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawnwithdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex A hereto. Parent The Offer shall providebe made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Acquisition shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of shares of Company Common Stock sought, or cause amend any other condition of the Offer in any manner adverse to be the holders of the Company Common Stock without the prior written consent of the Company; provided, however, that if on the initial scheduled expiration date of the Offer which shall be 20 business days after the date of the Offer is commenced, the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act (as defined below) to Merger Sub have expired or been terminated, Acquisition shall extend the expiration date from time to time until two business days after the expiration of the waiting period under the HSR Act. Acquisition shall, on a timely basis all funds necessary the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment, payment and pay for, all shares of for Company Common Stock tendered as soon as it is legally permitted to do so under applicable law; provided, however, that Merger Sub becomes obligated if, immediately prior to purchase the initial expiration date of the Offer (as it may be extended), the Company Common Stock tendered and not withdrawn pursuant to the Offer equals less than 90% of the outstanding Company Common Stock, Acquisition may extend the Offer one time for a period not to exceed twenty business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer.
(b) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's 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 is made by Parent or Acquisition with respect to information furnished by the Company to Parent or Acquisition, in writing, expressly for inclusion in the Offer Documents. The information supplied by the Company to Parent or Acquisition, in writing, expressly for inclusion in the Offer Documents and by Parent or Acquisition to the Company, in writing, expressly for inclusion in the Schedule 14D-9 (as hereinafter defined) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Each of Parent and Acquisition will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of the Company Common Stock, in each case as and to the extent required by applicable federal securities laws. Each of Parent and Acquisition, on the one hand, and the Company, on the other hand, will promptly 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 Acquisition will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of the 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 the opportunity to review the Schedule 14D-1 before it is filed with the SEC. In addition, Parent and Acquisition will provide the Company and its counsel in writing with any comments, whether written or oral, Parent, Acquisition or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
Appears in 2 contracts
Samples: Merger Agreement (Ivex Packaging Corp /De/), Merger Agreement (Ivex Packaging Corp /De/)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated in accordance with Article X hereof and so long as none commenced, would give rise to a right to terminate the Offer pursuant to any of the events conditions set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)I, as promptly as practicable, but in no event later than the fifth business day practicable after the date of this Agreementhereof, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer at the Offer Price. The initial expiration date Parent’s and Merger Sub’s obligation to accept and pay for shares of Company Common Stock tendered in the Offer shall be subject to the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered condition that there shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub validly tendered in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify accordance with the terms of the Offer; PROVIDED HOWEVER, that without prior to the prior written consent scheduled expiration of the CompanyOffer (as it may be extended hereunder) and not withdrawn, a number of shares of Company Common Stock that, together with the shares of Company Common Stock subject to a Sale and Support Agreement (the “Committed Shares”), represents at least two-thirds (or such lesser number as may be determined by Parent and Merger Sub) of all shares of Company Common Stock then outstanding (the “Minimum Condition”) and to the other conditions set forth in Annex I. Merger Sub shall not expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement, the Sale and Support Agreement or previously approved by the Company in writing, (i) reduce the Minimum Condition may not be waived below that number of shares of Company Common Stock that, together with the Committed Shares, represents a majority of all shares of Company Common Stock then outstanding, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of shares of Company Common Stock to be purchased sought in the Offer, (ii) reduce imposes conditions to the Offer Pricein addition to those set forth in Annex I, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in otherwise amends or modifies the Offer or (v) make in any other change in the terms of the Offer which is manner materially adverse to the holders of shares of Company Common StockStock and (iii) the Offer may not be extended except as set forth in this Section 1.1(a). Notwithstanding Subject to the foregoing sentenceterms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced. Merger Sub may, without the consent of the Company, (A) shall extend the OfferOffer (1) if, if at the then scheduled or extended expiration date of the Offer Offer, any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock Offer shall not have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up time, until the earliest to a maximum occur of an aggregate (x) the satisfaction or waiver of 30 days beyond such conditions, (y) the first day all of the Tender Offer Conditions have been met, and/or (C) extend reasonable determination by Parent that any such condition to the Offer is not capable of being satisfied on or prior to the Walk-Away Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by Parent or Merger Sub, and (z) the Walk-Away Date, and (2) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the OfferOffer or any period required by applicable Law. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled Following expiration date of the Offer, the Regulatory Conditions Merger Sub may, in its sole discretion, provide one or more subsequent offering periods (as defined each, a “Subsequent Offering Period”) in Annex A) shall not have been satisfied, but at such scheduled expiration date each accordance with Rule 14d-11 of the other conditions set forth in Annex A (other Exchange Act, if, as of the commencement of each such period, the number of shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period, together with the Committed Shares, is less than that number of shares of Company Common Stock necessary to permit the Minimum Condition) shall then Merger to be satisfied, at the request effected without a meeting of shareholders of the Company, Merger Sub shall extend the Offer from time to time, subject in accordance with Section 5.16 of TBCA. Subject to the right foregoing, including the requirements of ParentRule 14d-11, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon 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, as promptly purchase as practicable, all shares of Company Common Stock which are (A) validly tendered on or prior and not withdrawn pursuant to the Offer after the final expiration of the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes.
(b) As soon as practicable on the date of commencement of the Offer, 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 shall include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to Purchase and forms of letter of transmittal and summary advertisement, if any, in respect of the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of shares of Company Common Stock. The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Sub for inclusion in the Schedule TO or the Offer Documents. 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 false or misleading in any material respect. Parent and Merger Sub agree to 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 disseminated to holders of shares of Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall promptly provide the Company and its counsel with (A) 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 (B) 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.
Appears in 2 contracts
Samples: Merger Agreement (Watsco Inc), Merger Agreement (Acr Group Inc)
The Offer. (a) Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been validly terminated in accordance with pursuant to Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shallIX, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub subject to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce to the number extent required, Topco’s receipt of shares a final approval by the DFSA (or any other relevant regulator) (A) of Common Stock any EU Prospectus required under the EU Prospectus Regulation or any other similar documents or notifications as required under other applicable Laws to be purchased in announce and make the OfferOffer and subsequently of (B) the Offer Document (as defined herein), (ii) reduce the publication of the recommendation of the Company Board to the Company Shareholders to accept the Offer Priceand tender their Company Shares to Topco in the Offer (the “Company Recommendation”) simultaneously with the publication of the Offer Document, and (iii) modify the Company or add to the Tender Offer ConditionsCompany Board or executive management not having entered into a Company Alternative Proposal, (iv) change Topco shall procure the form publication of consideration payable in the EU Prospectus and the Offer or Document and commence the Offer.
(vb) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend In the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required each Company Share accepted by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth Topco in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon accordance with the terms and subject to the conditions of the Offer (including that each Company Shareholder must tender in respect of all, and not just some, Company Shares held by it and excluding any Company Shares subject to a Cash Election) shall be exchanged for newly and validly issued, fully paid and nonassessable Topco Shares on the basis of the Company Exchange Ratio; provided that to the extent that a Company Shareholder makes a Cash Election, it shall receive up to USD 1,000 in cash, payable in DKK (with such amount payable in DKK translated from USD 1,000 at the Exchange Rate on the date two (2) Business Days prior to the publication of the Offer Document) (the “Cash Consideration”), equal to the product of (A) the number of Company Shares subject to the Cash Election, (B) the Company Exchange Ratio and (C) the Parent VWAP; provided, however, that the aggregate Cash Consideration to be paid in the Offer shall not exceed USD 50 million (the “Cash Consideration Cap”) and, to the extent the aggregate Cash Consideration payable to Company Shareholders would exceed the Cash Consideration Cap, the Company Shareholders making a Cash Election shall receive their pro rata portion of cash equal to the Cash Consideration Cap (the Topco Shares and cash payable in the Offer, Merger Sub shall“Offer Consideration”), subject to the other provisions of this Article III.
(c) The Offer shall be made by means of an offer document approved by the DFSA in accordance with the Takeover Order (the “Offer Document”) that is disseminated to holders of Company Shares pursuant to the Takeover Order and contains, to the extent required by the Takeover Order, the terms and conditions set forth in this Agreement (including Exhibit D). The Offer shall not be made, and the Company Shares will not be accepted for purchase from or on behalf of persons, in any jurisdiction in which the making or acceptance thereof would not be in compliance with the securities or other Laws or regulations of such jurisdiction or would require any registration, approval or filing with any regulatory authority not expressly contemplated by this Agreement. Topco shall take all reasonable endeavours to consummate the Offer, subject to the terms and conditions hereof (including Exhibit D). The obligation of Topco to accept for exchange or, in the case of the Cash Election Shares, cash purchase (and the obligation of Parent shall to cause Merger Sub toTopco to accept for exchange and cash purchase, promptly purchase all shares of Common Stock which are as applicable) Company Shares validly tendered on or (and not validly withdrawn) pursuant to the Offer shall be subject only to (i) the condition that, prior to the expiration of the Offer Offer, there have been validly tendered and not withdrawn. validly withdrawn in accordance with the terms of the Offer a number of Company Shares that, upon the consummation of the Offer, together with the Company Shares then owned by Topco and Parent (if any) (excluding any treasury shares held by the Company and Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depositary for the Offer pursuant to such procedures), would represent at least 80% of the then outstanding Company Shares and voting rights of the Company immediately after the consummation of the Offer (the “Minimum Acceptance Condition”); and (ii) the other conditions set forth in Exhibit D.
(d) Subject to the occurrence of the Parent Merger Closing, Topco expressly reserves the right to waive or modify the conditions to the Offer as set forth in clauses (A), (C) to (I) and (K) of Exhibit D, subject to applicable Law, and to make any change in the terms of, or conditions to, the Offer; provided, however, that notwithstanding anything to the contrary set forth herein, without the prior written consent of the Company in its sole discretion, Topco may not (and Parent shall providenot permit Topco to) (i) waive the Minimum Acceptance Condition (other than the percentage included therein, which may be lowered by Topco in its sole discretion to not less than 70%) or (ii) make any change in the terms of or conditions to the Offer that (A) changes the form of consideration to be paid in the Offer, (B) reduces the Offer Consideration to be paid in the Offer (other than in each case an adjustment made pursuant to Section 4.1(i)), (C) extends the Offer, other than in a manner required or permitted by Section 3.1(f), or cause to be provided(D) except as otherwise permitted in this Section 3.1(d), to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares amends or modifies any term of Common Stock that Merger Sub becomes obligated to purchase pursuant or condition to the OfferOffer (including the conditions in Exhibit D) in any manner that has an adverse effect, or would be reasonably likely to have an adverse effect, on the Company Shareholders that is not de minimis.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X VII hereof and so long as none of the events set forth in Annex A hereto (the "Tender “Offer Conditions"”) shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)be continuing, as promptly as practicable, but in no event later than the fifth business day ten Business Days after the date hereof, the Purchaser will commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, Parent as amended, including the rules and Merger Sub shallregulations promulgated thereunder, and Parent shall cause Merger Sub to, commence the Offer at “Exchange Act”) a tender offer (the Offer Price. The initial expiration date “Offer”) for the Offer shall be the twentieth business day following the commencement all shares of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered shall be subject only at a price per share of the Company Common Stock of $14.50 net to the Tender Offer ConditionsSeller in cash (such price, or any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock to be purchased higher price paid in the Offer, (iithe “Price Per Share”) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in upon the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the and conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement, including Annex A hereto. Notwithstanding any thing The Offer shall be made by means of an offer to purchase containing the contrary terms set forth in this Agreement, Parent the Minimum Condition and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend hereto and the Offer from time to timeDocuments (as defined hereinafter). The acceptance for payment, subject to the right purchase and payment for shares of Parent, Merger Sub or the Company to terminate this Agreement Common Stock pursuant to the terms hereof. Upon Offer shall be referred to as the terms and subject to the conditions “consummation of the Offer.”
(b) The obligation of the Purchaser to accept for payment, Merger Sub shall, purchase and Parent shall cause Merger Sub to, promptly purchase all shares of pay for any Company Common Stock which are validly tendered pursuant to the Offer on or prior to the expiration Expiration Date and not withdrawn prior to such Expiration Date shall be subject only to the satisfaction or waiver of the Offer Conditions, specifically including the Offer Condition that at least that number of shares of Company Common Stock representing at least a majority of the total issued and outstanding shares of Company Common Stock on a “fully diluted basis” shall have been validly tendered and not withdrawnwithdrawn prior to 5:00 p.m. New York City time, on the Expiration Date (the “Minimum Condition”). Parent “Fully diluted basis” shall providemean, or cause to be providedas of any date, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all the number of shares of Company Common Stock that Merger Sub becomes obligated to purchase are issued and outstanding, together with the shares of Company Common Stock that may be issued by the Company pursuant to warrants, options, rights or obligations outstanding at that date whether or not vested or then exercisable, including the Offerconversion of all convertible securities, if any.
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions"ii) shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Sub shall, as promptly soon as practicable, but in no event later than the fifth business day five Business Days after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub tosuch announcement, commence (within the Offer meaning of Rule 14d-2(a) of the Exchange Act) a tender offer (the “Offer”) to purchase all of the outstanding shares of Company Common Stock at a price of $10.00 per share, net to the Offer Priceseller in cash without interest (the “Price Per Share”), subject to reduction only for any applicable withholding taxes. The initial expiration date for the Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the twentieth business day following the commencement of the Offerterms and conditions set forth in this Agreement. The obligations obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) at least that number of shares of Company Common Stock equivalent to 75% of the Tender Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer Conditions(subject to reduction as described below, the “Minimum Shares”) being validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction of the other conditions set forth in Annex A hereto, any of which conditions may be waived by Parent or Merger Sub in their its sole discretion; PROVIDEDprovided, HOWEVERhowever, that Merger Sub shall not waive reduce the Minimum Condition Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. The Tender Offer Conditions are for Company agrees that no shares of Company Common Stock held by the sole benefit Company or any of Parent and its Subsidiaries will be tendered to Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise pursuant to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without .
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce decrease the number of shares of Common Stock to be purchased Price Per Share payable in the Offer, (ii) reduce decrease the number of shares of Company Common Stock sought pursuant to the Offer Price, (iii) modify below a majority of the Fully Diluted Shares of Company Common Stock or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer (including the conditions set forth in Annex A hereto) or impose additional conditions to the Offer, (iv) except as provided below, change the expiration date of the Offer, or (v) make otherwise amend, add or waive any other change in the terms term or condition of the Offer which is materially in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding ; provided, however, that if on any scheduled expiration date of the foregoing sentenceOffer, which shall initially be 20 Business Days after the commencement date of the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days without the Company’s prior written consent, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); provided further that if on any scheduled expiration date of the Offer all conditions to the Offer (other than the Minimum Shares) have been satisfied or waived, and the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent at least a majority of the Fully Diluted Shares of Company Common Stock, and Merger Sub does not elect to reduce the Minimum Shares and consummate the Offer, then Merger Sub shall, at the Company’s request, on up to three occasions, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) extend the Offer may notif (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of Company Common Stock; provided, without however, that in no event shall the Company's prior written consent, be extended pursuant to extensions permitted under the foregoing clause (Ay) above if exceed, in the failure to satisfy any condition was caused by a material breach by Parent aggregate, 10 Business Days. Assuming the prior satisfaction or Merger Sub waiver of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing all the conditions to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions Offer set forth in Annex A (other than the Minimum Condition) shall then be satisfiedA, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the terms and conditions of the Offerthis Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly accept for payment, purchase and pay for, in accordance with the terms of the Offer, all shares of Company Common Stock which are validly tendered on or prior and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer and not withdrawnOffer. Parent shall provide, or cause to be provided, to Merger Sub Sub, on a timely basis all basis, the funds necessary to accept for payment, and pay for, all purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided Subject to the terms and conditions herein, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) a cash tender offer to purchase all of the issued and outstanding shares of the Company Common Stock for $7.75 U.S. Dollars per share of Company Common Stock (such amount, or any greater amount per share of Company Common Stock paid pursuant to the offer, the “Per Share Amount” and such offer, as it may be amended from time to time pursuant to the terms hereof, the “Offer”) no later than twenty (20) days after the date hereof (unless such date is not a business day, in which case the first business day after the date that twenty (20) days after the date hereof). Subject to satisfaction or waiver of the Tender Offer Conditions (as defined below) and the terms and conditions hereof, Parent shall cause Merger Sub to accept for payment, and Merger Sub shall accept for payment, all shares of the Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any event not more than the fourth business day) following the Expiration Date (as defined below). Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless and until this Agreement shall not have been is terminated in accordance with Article X Section 8.1.
(b) The obligation of Merger Sub to accept for payment, purchase, and pay for any shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) shall only be subject to the satisfaction or waiver pursuant to the terms hereof of (i) the condition (the “Minimum Condition”) that the number of shares of Company Common Stock validly tendered and so long as none not withdrawn prior to the Expiration Date, when added to any shares of Company Common Stock already owned by Parent or any of its subsidiaries, if any, shall be at least a majority of the events shares of Company Common Stock then outstanding on a fully-diluted basis (assuming the exercise of all options, warrants and other rights to purchase shares of Company Common Stock regardless of exercise price, vesting schedule or other terms or conditions thereof (other than any Warrants, Company Stock Options and Company Stock Awards that are cashed out at the Acceptance Date pursuant to Section 3.3 or Section 3.5 and with respect to which the holders thereof have entered into the cancellation agreements referenced in Section 3.3 and Section 3.5) and (ii) the other conditions set forth in Annex A hereto (the "conditions described in clauses (i) and (ii) are collectively referred to as the “Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub”), as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve reserves the right (but shall not be obligated) at any time or from time to modify time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition, which may not be amended or waived), to increase the Per Share Amount payable in the Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDED HOWEVERprovided, that without the prior written consent of the CompanyCompany no change may be made that decreases the Per Share Amount (except as provided in Section 1.1(h)), 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) modify or add to the Tender Offer Conditions, (iv) change changes the form of consideration payable in the Offer or (v) make any other change in the terms of Offer, imposes conditions to the Offer which is materially adverse in addition to the holders Tender Offer Conditions, decreases the number of shares of Company Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend Stock subject to the Offer, if at reduces the then scheduled expiration date of time period during which the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied shall remain open, or waivedmodifies, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend amends or supplements the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of or the Tender Offer Conditions have been met, and/or (C) extend the Offer for in any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable manner adverse to the Offer. Notwithstanding the foregoing, Company Stockholders.
(xc) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time, on the later of (i) the twentieth (20th) business day following commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) and (ii) May 31, 2013 (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of Section 1.1(d) or as required by Applicable Law or the interpretations of the Securities and Exchange Commission (the “SEC”) (in which event the term “Expiration Date” shall mean the latest time and date on which the Offer, Merger Sub shallas so extended, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offermay expire).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof VIII and so long as none of the events or conditions set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing be existing, Parent shall cause Subcorp to commence, and Subcorp shall commence (unless such event shall have been waived by Parent or Merger Subwithin the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the ”Exchange Act”)), as promptly as reasonably practicable, but in no event later than the fifth five business day days, after the date of this Agreement, Parent and Merger Sub shall, and the Offer. Parent shall cause Merger Sub toSubcorp to accept for payment, commence and Subcorp shall accept for payment, all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer at the Offer Price. The earliest time following the initial expiration date for Expiration Date at which time all conditions of the Offer shall be have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment all additional shares of Company Common Stock validly tendered during any subsequent offering period as provided in Section 1.1(c). Subcorp shall not accept for payment any shares of Company Common Stock tendered pursuant to the twentieth business day following Offer unless there shall have been validly tendered and not withdrawn prior to the commencement Expiration Date such number of shares of Company Common Stock that satisfy the Minimum Condition. Subcorp expressly reserves the right to increase the Per Share Amount and to waive any condition of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive except the Minimum Condition without the prior written consent of the CompanyCondition. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without Without the prior written consent of the Company, Merger Sub Subcorp shall not (i) reduce decrease the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify Per Share Amount or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose conditions to the Offer in addition to those set forth in Annex A, change or waive the Minimum Condition or, except as provided in Section 1.1(c) or (v) make any other change in d), extend the terms expiration of the Offer which is beyond the initial Expiration Date, or amend any other term of the Offer in a manner materially adverse to the Company Shareholders. The Per Share Amount shall be paid less any required withholding of Taxes, upon the terms and subject to satisfaction or waiver of the conditions of the Offer set forth in Annex A. The Company agrees that no shares of Company Common Stock held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) Subcorp shall file with the Securities and Exchange Commission (the “Commission”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date the Offer is commenced, which shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the “Offer Documents”) and use its reasonable best efforts to cause the Offer Documents to be disseminated to the Company Shareholders in accordance in all material respects with the applicable requirements of the United States federal securities laws. Parent and Subcorp will use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of the United States federal securities laws. The information provided and to be provided by the Company, Parent and Subcorp for use in the Offer Documents shall not, on the date filed with the Commission and on the date first published or sent or given to holders of shares of Company Common StockStock (the “Company Shareholders”), as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Subcorp with respect to the information supplied by the Company for inclusion in the Offer Documents. Notwithstanding The Company, Parent and Subcorp each agree promptly to correct any information provided by it for use in the foregoing sentenceOffer Documents if and to the extent that it shall have become false or misleading in any material respect, Merger Sub and Parent further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the Commission and disseminated to the Company Shareholders to the extent required by applicable United States federal securities laws. The Company shall promptly furnish to Parent or Subcorp all information concerning the Company that is required or reasonably requested by Parent or Subcorp in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the Commission or dissemination to the Company Shareholders. In addition, Parent and Subcorp shall provide the Company and its counsel any comments, whether written or oral, that Parent or Subcorp or their counsel may receive from time to time from the Commission or the staff of the Commission (the “SEC Staff”) with respect to the Offer Documents within a reasonable time after receipt of such comments, consult with the Company and its counsel prior to responding to such comments and provide the Company with copies of all written responses and advise the Company as to the substance of all oral responses.
(c) Subject to the provisions of Article VIII and the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, on the date that is 20 business days after the date the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an “Expiration Date”). Subcorp may, without the consent of the Company, (A) extend the Offer, if at the time of the then scheduled expiration date of the Offer Expiration Date any of the conditions to Merger Sub's obligations to purchase of the shares of Common Stock have Offer are not been satisfied or waived, until extend the third Offer for such period as Subcorp determines; provided that such extension shall be in increments of not more than five business day after days if all of the day Merger Sub reasonably believes to be conditions set forth on Annex A other than the earliest date on which Minimum Condition have been satisfied or waived at such conditions will be satisfiedExpiration Date, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Commission or the staff thereof SEC Staff applicable to the Offer. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (yC) if at the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any then scheduled expiration date Expiration Date all of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in on Annex A have been satisfied or waived, extend the Offer for one subsequent offering period (other than as provided in Rule 14d-11 under the Exchange Act) for three to 20 business days after Subcorp’s acceptance for payment of the Company Common Stock then tendered and not withdrawn pursuant to the Offer in order to acquire at least 90% of the outstanding Company Common Stock.
(d) The Company may cause the extension of the Expiration Date in accordance with, and subject to the terms of, this Section 1.1(d).
(i) In the event that the Minimum Condition) shall Condition has not been satisfied or waived at the then be satisfiedscheduled Expiration Date, at the written request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub Subcorp shall, and Parent shall cause Merger Sub Subcorp to, promptly purchase all shares extend the Expiration Date in such increments as Subcorp may reasonably determine until the earliest to occur of Common Stock which are validly tendered (A) the satisfaction or waiver of such condition, (B) Parent’s reasonable determination, after May 1, 2005, that such condition to the Offer is not capable of being satisfied on or prior to the Outside Date, (C) the termination of this Agreement in accordance with its terms or (D) the Outside Date; provided that the Company shall not be entitled to any extension of the Expiration Date contemplated by this Section 1.1(d)(i) if (x) any of the obligations of the Principal Shareholders under the Support Agreement have been breached by one or more of the Principal Shareholders beneficially owning, individually or in the aggregate, more than 3% of the Fully Diluted Shares or (y) York has breached any of his obligations under the York Support Agreement or Mxxxxx has breached any of his obligations under the Mxxxxx Support Agreement.
(ii) In the event that any applicable waiting period under the HSR Act shall not have expired or been terminated at the then scheduled Expiration Date, at the written request of the Company, Subcorp shall, and Parent shall cause Subcorp to, extend the Expiration Date in such increments as Subcorp may reasonably determine until the earliest to occur of (A) the expiration or termination of such waiting period, (B) the termination of this Agreement in accordance with its terms or (C) the Outside Date.
(iii) In the event that a failure to satisfy the condition in paragraph (d) of Annex A shall exist and the cure period described therein shall not have expired at the then scheduled Expiration Date, at the written request of the Company, Subcorp shall, and Parent shall cause Subcorp to, extend the Expiration Date in such increments as Subcorp may reasonably determine until the earliest to occur of (A) the cure of such failure, (B) the expiration of such cure period, (C) the termination of this Agreement in accordance with its terms or (D) the Outside Date.
(iv) In the event that a notice contemplated by Section 6.3(c) is delivered to Parent within three business days of the initial Expiration Date, then Subcorp shall extend the Offer for a period of no less than three business days.
(e) Subject to the prior satisfaction or waiver of the conditions to the Offer, Subcorp shall, and not withdrawn. Parent shall providecause Subcorp to, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Company Common Stock that Merger Sub becomes obligated to purchase validly tendered and not withdrawn pursuant to the OfferOffer promptly, but in no event more than three business days, following the Expiration Date.
Appears in 1 contract
Samples: Merger Agreement (Amx Corp /Tx/)
The Offer. (a) Provided that Subject to the terms of this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Agreement, as promptly as practicable, practicable (but in no event later than the fifth business day five Business Days) after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the Pending Offer at to reflect the Offer Priceexecution, terms and conditions of this Agreement. The initial expiration date for on which the Pending Offer is amended, which shall be the twentieth business day following date hereof, is referred to in this Agreement as the commencement of the Offer“Offer Amendment Date”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment payment, and to pay for for, any shares of Company Common Stock tendered shall be subject only pursuant to the Tender Offer are subject to the conditions set forth in Exhibit A (the “Offer Conditions”). The Offer shall expire at midnight, any New York City time, on the 10th Business Day following the Offer Amendment Date (such time or such subsequent time to which the expiration of which may be waived by Parent or the Offer is extended in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub expressly reserves the right, in their its sole discretion; PROVIDED, HOWEVERto waive, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to , any Offer Condition or modify the terms of the Offer; PROVIDED HOWEVERprovided, that however, that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to be purchased in the Offer, (ii) reduce the Offer Price, (iii) change, modify or waive the Minimum Tender Condition; provided that, Parent may, at any time in its sole discretion and without the consent of the Company, amend the Minimum Tender Condition such that the determination of the number of outstanding shares of Company Common Stock on a fully diluted basis shall exclude all options and convertible securities with an exercise price or conversion price greater than the Offer Price, (iv) add to the Tender conditions set forth in Exhibit A or modify or change any Offer ConditionsCondition in a manner adverse to any holders of Company Common Stock, (ivv) except as otherwise provided in this Section 1.1(a), extend or otherwise change the Expiration Date of the Offer, (vi) change the form of consideration payable in the Offer or (vvii) make otherwise amend, modify or supplement any other change in of the terms of the Offer which is materially in a manner adverse to the any holders of Company Common StockStock in their capacity as such. Notwithstanding anything in this Agreement to the foregoing sentencecontrary, Merger Sub may, in its sole discretion, without the consent of the Company, (A) without limiting Parent’s or Merger Sub’s obligations under the following sentence, extend the OfferOffer on one or more occasions, in consecutive increments of up to ten Business Days (or such longer period as the parties hereto may agree) each, if at the then on any then-scheduled expiration date Expiration Date of the Offer any of the conditions Offer Conditions shall not have been satisfied or, to the extent waivable by Parent or Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or , waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, and (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately that, to the extent requested in writing by the Company prior to any then-scheduled expiration date Expiration Date of the Offer, the Regulatory Conditions Merger Sub shall (as defined in Annex and Parent shall cause Merger Sub to) (A) if any of the Offer Conditions set forth in paragraph (a) or (b) of clause (ii) of Exhibit A shall not have been satisfiedsatisfied or, to the extent waivable by Parent or Merger Sub, waived, and provided that it is reasonably expected that such condition or conditions shall be satisfied prior to the Termination Date, extend the Offer on one or more occasions, in consecutive increments of up to ten Business Days each (or such longer period as the parties hereto may agree), until such time as such Offer Conditions are satisfied (but at such scheduled expiration date each not beyond the Termination Date) and (B) if any of the other conditions Minimum Tender Condition or the Offer Conditions set forth in Annex paragraph (d) or (e) of clause (ii) of Exhibit A shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived on such then-scheduled Expiration Date, but all the other Offer Conditions set forth in Exhibit A shall be satisfied on such then-scheduled Expiration Date, extend the Offer on one or more occasions, in consecutive increments of up to five Business Days (other or such longer period as the parties hereto may agree) each, for an aggregate period of time of not more than the Minimum Condition20 Business Days; provided, however, that (i) shall then be satisfied, at the request of the Company, Merger Sub shall not be required to extend the Offer from beyond the Termination Date or at any time to time, subject to the right of Parent, Parent or Merger Sub or the Company is permitted to terminate this Agreement pursuant to Article VIII and (ii) if the terms hereof. Upon Minimum Tender Condition is not satisfied, but all other Offer Conditions are satisfied or waived, Merger Sub shall only be obligated to extend the Offer for one additional period not to exceed and not less than ten (10) Business Days.
(b) Subject to the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase accept and pay for (subject to any withholding of Tax pursuant to Section 1.1(e)) all shares of Company Common Stock which are validly tendered on or prior and not validly withdrawn pursuant to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the Expiration Date of the Offer. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right, in its sole discretion, to elect to provide for a “subsequent offering period” in accordance with Rule 14d-11 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”) following the Offer Closing, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall accept for payment and pay for all shares validly tendered during such subsequent offering period. The Offer may not be terminated prior to its Expiration Date, unless this Agreement is validly terminated in accordance with Article VIII. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.1, prior to the acceptance for payment of Company Common Stock tendered in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the registered holders thereof.
(c) As promptly as reasonably practicable following the Offer Amendment Date, Parent and Merger Sub shall file with the SEC an amendment to its Tender Offer Statement on Schedule TO filed originally on May 10, 2012 under cover of Schedule TO with respect to the Pending Offer, which shall reflect the execution, terms and conditions of this Agreement and contain a supplement to the offer to purchase and a related letter of transmittal (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”). The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and disseminated to the holders of Company Common Stock, in each case as and to the extent required by applicable Federal securities Laws. Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, and shall use its reasonable best efforts to give the Company the opportunity to participate in any substantive telephonic communications with the staff of the SEC related thereto. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give reasonable consideration to any such comments.
(d) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(e) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer, the Merger or otherwise pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable Law. To the extent that amounts are so withheld and paid over by Merger Sub to the appropriate Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Merger Sub.
(f) For purposes of this Agreement (including exercise of the Top-Up Option) and the Offer, unless otherwise mutually agreed to by the Company and Parent, any shares of Company Common Stock subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer unless and until the shares of Company Common Stock underlying such notices of guaranteed delivery have been delivered to Merger Sub.
Appears in 1 contract
The Offer. (a) Provided As promptly as practicable after the date of this Agreement and in any event no later than June 18, 2012, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)), a cash tender offer to purchase any and all of the issued and outstanding shares of the Company Common Stock for $3.70 U.S. Dollars per share of Company Common Stock (such amount, or any greater amount per share of Company Common Stock paid pursuant to such offer in accordance with this Agreement, the “Per Share Amount” and such offer, as it may be amended from time to time pursuant to the terms hereof, the “Offer”). Subject to the terms and conditions of this Agreement, Parent shall cause Merger Sub to accept for payment, and Merger Sub shall accept for payment, all shares of the Company Common Stock that have been validly tendered and not validly withdrawn pursuant to the Offer promptly and in any event not more than the fourth business day following the Expiration Date (as defined below). Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company except in the event that this Agreement shall not have been is terminated in accordance with Article X Section 8.1.
(b) The obligation of Merger Sub to accept for payment, purchase and pay for any shares of Company Common Stock validly tendered pursuant to the Offer (and not validly withdrawn pursuant to the Offer) shall only be subject to the satisfaction or waiver by Parent or Merger Sub (in their sole discretion) pursuant to the terms hereof of (i) the condition (the “Minimum Condition”) that at least that number of shares of Company Common Stock validly tendered and so long as none not validly withdrawn prior to the Expiration Date, when added to any shares of Company Common Stock already beneficially owned by Parent or Merger Sub, if any, shall be greater than a majority of the events shares of Company Common Stock then outstanding on a fully diluted basis (assuming the exercise of all options and other rights to purchase shares of Company Common Stock regardless of exercise price, vesting schedule or other terms or conditions thereof (other than any Company Stock Options and Company Stock Awards that will be cashed out pursuant to Section 3.3 and any Top-Up Option Shares issuable upon the exercise of the Top-Up Option)) and (ii) the other conditions set forth in Annex A hereto (the "conditions described in clauses (i) and (ii) are collectively referred to as the “Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub”), as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right (but shall not be obligated) at any time or from time to modify time, in their sole discretion, to amend or waive in whole or in part, any Tender Offer Condition (other than the Minimum Condition, which may not be amended, modified or waived without the prior written consent of the Company), to increase the Per Share Amount payable in the Offer, or to make any other changes in the terms and conditions of the Offer; PROVIDED HOWEVERprovided, that that, subject to Applicable Laws, without the prior written consent of the Company, Merger Sub shall not no change may be made that decreases the Per Share Amount (i) reduce the number of shares of Common Stock to be purchased except as provided in the OfferSection 1.1(h)), (ii) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change changes the form of consideration payable in the Offer or (v) make any other change in the terms of Offer, imposes conditions to the Offer which is materially adverse in addition to the holders Tender Offer Conditions, decreases the number of shares of Company Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend Stock subject to the Offer, if at reduces the then scheduled expiration date of time period during which the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied shall remain open, or waivedmodifies, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend amends or supplements the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of or the Tender Offer Conditions have been met, and/or (C) extend the Offer for in any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable manner adverse to the Offer. Notwithstanding the foregoing, Company Shareholders.
(xc) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions thereof, the Offer shall remain open until midnight New York City time at the end of the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of Section 1.1(d) or as required by Applicable Law or the interpretations of the Securities and Exchange Commission (the “SEC”) (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, Merger Sub shallas so extended, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offermay expire).
Appears in 1 contract
The Offer. (a) Provided that Subject to the provisions of this Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions"ii) shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Sub shall, as promptly soon as practicable, but in no event later than the fifth business day five Business Days after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub tosuch announcement, commence (within the Offer meaning of Rule 14d-2(a) of the Exchange Act) a tender offer (the "Offer") to purchase ----- all of the outstanding shares of Company Common Stock at a price of $10.00 per share, net to the Offer Priceseller in cash without interest (the "Price Per Share"), --------------- subject to reduction only for any applicable withholding taxes. The initial expiration date for the Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the twentieth business day following the commencement of the Offerterms and conditions set forth in this Agreement. The obligations obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) at least that number of shares of Company Common Stock equivalent to 75% of the Tender Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer Conditions(subject to reduction as described below, the "Minimum Shares") being validly tendered and not withdrawn prior to -------------- the expiration of the Offer and (ii) the satisfaction of the other conditions set forth in Annex A hereto, any of which conditions may be waived by Parent or Merger Sub ------- in their its sole discretion; PROVIDEDprovided, HOWEVERhowever, that Merger Sub shall not waive reduce the Minimum Condition Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. The Tender Offer Conditions are for Company agrees that no shares of Company Common Stock held by the sole benefit Company or any of Parent and its Subsidiaries will be tendered to Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise pursuant to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without .
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce decrease the number of shares of Common Stock to be purchased Price Per Share payable in the Offer, (ii) reduce decrease the number of shares of Company Common Stock sought pursuant to the Offer Price, (iii) modify below a majority of the Fully Diluted Shares of Company Common Stock or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer (including the conditions set forth in Annex A hereto) ------- or impose additional conditions to the Offer, (iv) except as provided below, change the expiration date of the Offer, or (v) make otherwise amend, add or waive any other change in the terms term or condition of the Offer which is materially in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding ; provided, however, that if on any scheduled expiration date of the foregoing sentenceOffer, which shall initially be 20 Business Days after the commencement date of the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days without the Company's prior written consent, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); provided further that if on any scheduled expiration date of the Offer all conditions to the Offer (other than the Minimum Shares) have been satisfied or waived, and the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent at least a majority of the Fully Diluted Shares of Company Common Stock, and Merger Sub does not elect to reduce the Minimum Shares and consummate the Offer, then Merger Sub shall, at the Company's request, on up to three occasions, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) extend the Offer may notif (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of Company Common Stock; provided, without however, that in no event shall the Company's prior written consent, be extended pursuant to extensions permitted under the foregoing clause (Ay) above if exceed, in the failure to satisfy any condition was caused by a material breach by Parent aggregate, 10 Business Days. Assuming the prior satisfaction or Merger Sub waiver of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing all the conditions to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions Offer set forth in Annex A (other than the Minimum Condition) shall then be satisfiedA, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the terms and conditions of the Offerthis Agreement, Merger Sub ------- shall, and Parent shall cause Merger Sub to, promptly accept for payment, purchase and pay for, in accordance with the terms of the Offer, all shares of Company Common Stock which are validly tendered on or prior and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer and not withdrawnOffer. Parent shall provide, or cause to be provided, to Merger Sub Sub, on a timely basis all basis, the funds necessary to accept for payment, and pay for, all purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Zhone Technologies Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of VII, the events conditions set forth in Annex A hereto (other than clauses (a), (b) or (f) of Annex A) shall have been satisfied, or if permissible under applicable Law, waived (the "conditions set forth in Annex A, the “Tender Offer Conditions") ”), and the Company shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)complied with its obligations under Section 1.2 hereof, as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offer at meaning of Rule 14d-2 under the Offer Price. The initial expiration date for U.S. Securities Exchange Act of 1934, as amended (together with its rules and regulations, the Offer shall be the twentieth business day following the commencement of “Exchange Act”)) the Offer. The obligations , as promptly as reasonably practicable after the date of Merger Sub to accept for payment this Agreement and to pay for in any shares event within fifteen (15) Business Days after the date of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in partthis Agreement. Parent and Merger Sub expressly reserve the right to modify waive any of the Tender Offer Conditions, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; PROVIDED HOWEVERprovided that, that without the prior written consent of the Company, Parent and Merger Sub shall not not:
(i) reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce decrease the Offer Price, (iii) modify Price or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or Offer;
(vii) make any other change decrease the number of shares of Company Common Stock sought to be purchased in the terms of Offer;
(iii) impose conditions on the Offer which is materially in addition to the Tender Offer Conditions or amend any condition in a manner adverse to the holders of Common Stock;
(iv) waive or amend the Minimum Condition;
(v) amend any other term of the Offer in a manner adverse to the Company Shareholders; or
(vi) extend the Expiration Date except as required or permitted by this Section 1.1. 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) Merger Sub shall file with the U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date that the Offer is commenced, which Tender Offer Statement shall include an offer to purchase, letter of transmittal and summary advertisement and other required ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”) and cause the Offer Documents to be disseminated to the Company Shareholders in accordance with the applicable requirements of the Exchange Act. The Company, Parent and Merger Sub each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the Company Shareholders to the extent required by applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel 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 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 or its staff.
(c) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Section 1.1(c) or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 1.1(c), the “Expiration Date”). Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Companyforegoing, (Ai) extend if, on the OfferExpiration Date, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have Tender Offer Conditions are not been satisfied or waived, until then, to the third business day after extent requested in writing by the day Company no less than two (2) Business Days prior to the Expiration Date, Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfiedshall, (B) and Parent shall cause Merger Sub to, extend the Offer from time to time for one (1) or more periods of time up to a maximum of an aggregate of 30 days ten (10) Business Days per extension until such condition(s) has been satisfied or waived; provided, that Merger Sub shall not be required to extend the Offer beyond April 30, 2010 (the first day all “Outside Date”); provided, further, that if the only Tender Offer Condition which has not been satisfied as of the Tender Offer Conditions have been metOutside Date is the Regulatory Condition, and/or the Outside Date shall be May 30, 2010, and (Cii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the its staff thereof applicable to the Offer. Notwithstanding Offer or necessary to resolve any comments of the foregoing, (x) SEC or its staff applicable to the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) or the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Documents. Merger Sub shall not extend the Offer if all of any of their representations, warranties, covenants the Tender Offer Conditions are satisfied or agreements waived and it is permitted under applicable Law to accept for payment and pay for tendered shares.
(d) Subject to the terms and conditions set forth in this Agreement. Notwithstanding any thing Agreement and to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date satisfaction or waiver of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Tender Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the OfferConditions, Merger Sub shall, and Parent shall cause Merger Sub it to, promptly purchase as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Company Common Stock that Merger Sub becomes obligated to purchase have been validly tendered and not validly withdrawn pursuant to the Offer. If all of the Tender Offer Conditions are satisfied but the number of shares of Company Common Stock that have been validly tendered and not validly withdrawn in the Offer and accepted for payment, together with any shares of Company Common Stock then owned by Parent or any of its Subsidiaries, is less than 90% of the shares of Company Common Stock then outstanding on a fully-diluted basis (on a “fully-diluted basis” meaning the number of shares of Company Common Stock 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 (whether or not then vested or exercisable), warrants (only to the extent then exercisable or exercisable as a result of the Transactions), rights, convertible or exchangeable securities (only to the extent then convertible or exchangeable into shares of Company Common Stock) or similar obligations then outstanding), Merger Sub may, without the consent of the Company, commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three (3) to twenty (20) Business Days to acquire outstanding untendered shares of Company Common Stock. If Merger Sub commences a subsequent offering period in connection with the Offer, Merger Sub shall accept for payment and pay for all additional shares of Company Common Stock validly tendered during such subsequent offering period.
Appears in 1 contract
Samples: Merger Agreement (Chattem Inc)
The Offer. (a) Provided that Subject to the conditions of this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Agreement, as promptly as practicable, but in no event later than the fifth five business day days after the date of the public announcement of this Agreement, Parent and Merger Sub shall, and Parent Rexam shall cause Merger Sub to, commence the Offer at within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Sub to, and of Rexam to cause Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer Price. are subject to the conditions set forth in Exhibit A. The initial expiration date for of the Offer shall be the twentieth 20th business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer; PROVIDED HOWEVER, that except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to be purchased in the Offer, (ii) reduce the Offer Priceprice per share of Company Common Stock to be paid pursuant to the Offer, (iii) modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the Tender Offer Conditionsconditions 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, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vvi) make any other change in the terms of otherwise amend the Offer which is materially in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing sentenceforegoing, Merger Sub may, without the consent of the Company, (A) extend the Offer, for one or more periods of time that Sub reasonably believes are necessary to cause the conditions of the Offer set forth hereto to be satisfied, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations obligation to purchase the shares of Company Common Stock have are not been satisfied, until such time as such conditions are satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, waived or (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) Rexam and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall Offer then be satisfied, at the request of the Company, Merger Sub shall extend the Offer for one or more periods of time that Sub reasonably believes are necessary to cause the conditions of the Offer set forth hereto to be satisfied from time to timetime until such conditions are satisfied or waived, subject provided that Sub shall not be required to extend the right Offer beyond October 25, 2000. Sub may, without the consent of Parentthe Company, Merger Sub or elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") following its acceptance for payment of shares of Company to terminate this Agreement pursuant to Common Stock in the terms hereofOffer. Upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Sub shall, and Parent Rexam shall cause Merger Sub to, promptly purchase pay for all shares of Company Common Stock which are validly tendered on or prior and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Rexam and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Rexam and Sub agree that the Offer Documents shall comply as to form in all material respects with the Exchange Act, and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not withdrawncontain 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 Rexam or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Parent Each of Rexam, Sub and the Company shall providepromptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Rexam and Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Rexam and Sub shall provide the Company and its counsel in writing with any written comments (and orally, any oral comments), Rexam, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Rexam shall provide or cause to be provided, provided to Merger Sub on a timely basis all the funds necessary to accept for payment, and pay for, all purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rexam Acquisition Subsidiary Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") I shall have occurred and or are continuing (unless such event shall have been waived by Parent or Merger Subother than the requirements set forth in clauses "(i)," "(ii)," "(iii)(e)" and "(iii)(f)" of Annex I), as promptly as practicable, but in no event later than the fifth business day practicable after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence Agreement (but in no event more than five business days after the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement public announcement of the execution of this Agreement), Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer. .
(b) The obligations obligation of Merger Acquisition Sub to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) the Tender Offer Conditionscondition that there shall be validly tendered a number of shares of Company Common Stock which, together with any outstanding shares of Company Common Stock with respect to which may be waived by Parent or Merger Sub in their has sole discretion; PROVIDEDbeneficial ownership, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent represents at least a majority of the Company. The Tender Offer Conditions are for Fully Diluted Number of Company Shares (the sole benefit of Parent "Minimum Condition") and Merger Sub and may be asserted by Parent and Merger Sub regardless of (ii) the circumstances giving rise to any such Tender Offer Conditions or, except as expressly other conditions set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Annex I. Acquisition Sub expressly reserve reserves the right to modify increase the Per Share Amount or to make any other changes in the terms and conditions of the OfferOffer not inconsistent with the provisions of this Agreement; PROVIDED HOWEVERprovided, however, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the Minimum Condition may not be amended or waived; and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per share of Company Common Stock or the number of shares of Company Common Stock to be purchased sought in the Offer, (ii) reduce imposes conditions to the Offer Pricein addition to those set forth in Annex I, (iii) modify or add to extends the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms expiration date of the Offer which is materially adverse beyond the initial expiration date of the Offer (except as provided in (c), below). Notwithstanding anything to the holders contrary contained in this Agreement, the Offer may not be withdrawn prior to the expiration date (or any rescheduled expiration date) of Common Stockthe Offer.
(c) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at any then-scheduled expiration date, the conditions to the Offer have not been satisfied or waived (other than conditions which are not capable of being satisfied), Acquisition Sub shall be entitled to extend the Offer for such amount of time as Acquisition Sub reasonably believes is necessary to cause such Offer conditions to be satisfied; provided, however, that Acquisition Sub shall not be entitled to extend the Offer to any date occurring after 60 business days following the commencement of the Offer without the prior written consent of the Company. Notwithstanding anything to the foregoing sentence, Merger contrary contained in this Agreement: (i) Acquisition Sub may, without the consent of the Company, Company or any other Person (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rulerule or regulation of the SEC applicable to the Offer and (B) if more than a majority of the Fully Diluted Number of Company Shares but less than 90% of the Fully Diluted Number of Company Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, regulationextend the Offer for an additional period of not more than 20 business days, interpretation provided, however, that Acquisition Sub shall not be entitled to extend the Offer pursuant to this clause (B) to any date occurring after 60 business days following the commencement of the Offer without the prior written consent of the Company; and (ii) Acquisition Sub may, without the consent of the Company or position any other Person, elect to provide for a subsequent offering period (and one or more extensions thereof) pursuant to, and in accordance with the terms of, Rule 14d-11 under the Exchange Act.
(d) As promptly as practicable on the date of commencement of the Offer, Parent and Acquisition Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer that will contain or incorporate by reference the offer to purchase and form of the related letter of transmittal and (ii) cause the offer to purchase and related documents to be disseminated to holders of shares of Company Common Stock. Parent and Acquisition Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the "Offer Documents") filed by either Parent or Acquisition Sub with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable laws (except that Parent and Acquisition Sub shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Acquisition Sub and the Company agrees to respond promptly to any comments of the SEC or its staff and to promptly correct any information provided by it for use in the staff thereof applicable Offer Documents if and to the Offer. Notwithstanding the foregoingextent that such information shall have become false or misleading in any material respect, (x) and Parent further agrees to take all steps necessary to cause the Offer may notDocuments as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of shares of Company Common Stock, without in each case as and to the extent required by applicable federal securities laws. The Company shall promptly furnish to Parent and Acquisition Sub all information concerning the Acquired Corporations and the Company's written consent, stockholders (i) that may be extended beyond required in connection with any action contemplated by this Section 1.1(d) within two business days after the date public announcement of termination the execution of this Agreement pursuant to Section 10.1(a) and (yii) reasonably requested in connection with any action contemplated by this Section 1.1(d) within two business days after such request. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or Documents prior to the expiration of filing thereof with the SEC. Parent and Acquisition Sub agree to provide the Company and its counsel with any comments Parent, Acquisition Sub or their counsel may receive from the SEC or its staff with respect to the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares Documents promptly after receipt of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offersuch comments.
Appears in 1 contract
Samples: Merger Agreement (Cubic Corp /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as As promptly as reasonably practicable, but and in no any event later than the fifth business day after within five (5) Business Days of the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offer meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all outstanding shares of Company Common Stock at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub Sub, and of Parent to cause Merger Sub, to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the Tender satisfaction or waiver by Merger Sub of the conditions set forth in Annex A hereto (the “Offer Conditions, any of which may be waived by Parent or ”). Merger Sub expressly reserves the right, in their its sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not to waive the Minimum any Offer Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right , at any time or from time to time, or to modify the terms or conditions of the Offer; PROVIDED HOWEVER, that except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (ivii) change the form of consideration payable in the Offer Offer, (iii) reduce the number of shares of Company Common Stock subject to the Offer, (iv) waive or change the Minimum Condition or the Termination Condition (each as defined in Annex A), (v) make any other change in add to the terms Offer Conditions, (vi) terminate, or extend or otherwise amend or modify the expiration date of the Offer which is materially except as required or permitted by Section 1.1(b) or (vii) amend, modify or supplement any Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the holders of Company Common Stock. Notwithstanding The Company agrees that no Company Common Stock held by the foregoing sentenceCompany, Merger Sub mayor any of their respective Subsidiaries will be tendered in the Offer; provided that the Company shall be permitted to tender Company Common Stock held or beneficially owned by the Company pursuant to or in respect of a Company Plan or a trust that relates to obligations pursuant to a Company Plan.
(b) The Offer shall expire on the date that is twenty (20) Business Days after the commencement of the Offer (determined using Rule 14d-1(g)(3) of the Exchange Act); provided, however, that, subject to the provisions of Article VIII, if at any scheduled expiration date of the Offer, the Offer Conditions shall not have been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one or more consecutive increments, each lasting until the earliest to occur of (i) a date that is no more than five (5) Business Days after such previously scheduled expiration date (or such other period of time to which the Company may consent in writing) or (ii) nine (9) months from the date hereof (the “Walk-Away Date”); provided further, that Merger Sub may (and shall where fewer than 90% of the total shares of Company Common Stock then outstanding have been accepted for payment in the Offer or are to be acquired pursuant to the exercise of the Top-Up Option immediately following the Acceptance Time) provide a subsequent offering period (a “Subsequent Offering Period”) after the expiration of the Offer, in accordance with Rule 14d-11 under the Exchange Act. Notwithstanding the foregoing, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes shall have the right to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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 its staff thereof applicable to the Offer. Notwithstanding the foregoing, .
(xc) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant Subject to the terms hereof. Upon the terms and subject to the conditions of the OfferOffer and this Agreement and the satisfaction, or waiver by Merger Sub, of all of the Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase (i) accept for payment all shares of Company Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase validly withdrawn pursuant to the OfferOffer promptly after the expiration date thereof (as the same may be extended or required to be extended, the “Expiration Date”) and pay for such shares as soon as practicable (and, in any event, no more than three (3) Business Days) after the Expiration Date or (ii) in the case of any shares of Company Common Stock tendered during any Subsequent Offering Period, accept for payment and pay for all such shares of Company Common Stock validly tendered and not validly withdrawn as soon as practicable (and, in any event, no more than three (3) Business Days) following the valid tender thereof. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with Section 1.1(b)), unless this Agreement is validly terminated in accordance with Section 8.1. Nothing contained in this Section 1.1(c) shall affect any termination rights set forth in Section 8.1.
Appears in 1 contract
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Article X hereof its terms and so long as provided that none of the events set forth in clause (iv) of Annex A shall have occurred and subject to 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, Sub shall (and Parent shall cause Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable, and in any event within twenty (20) Business Days, after the date hereof. Following such launch, each of Parent and Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof.
(b) The obligation of Sub to accept for payment, purchase and pay for any shares of Company Common Stock 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 shares of Company Common Stock validly tendered and not withdrawn prior to the expiration date of the Offer (other than shares of Company Common Stock tendered by guaranteed delivery that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer), when added to any shares of Company Common Stock already owned by Parent or any of its controlled subsidiaries, if any, equals a majority of the then outstanding shares of Company Common Stock and (y) the other conditions set forth in Annex A hereto (the "conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions"”). Sub expressly reserves the right (but shall not be obligated) shall have occurred and are continuing (unless such event shall have been waived by Parent at any time or Merger Sub)from time to time, as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their its sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not to amend or waive any such condition (other than the Minimum Condition without which may not be amended or waived), to increase the prior written consent price per share of Company Common Stock payable in the Company. The Tender Offer Conditions are for the sole benefit of Parent Offer, and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to make any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub other changes in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms and conditions of the Offer; PROVIDED HOWEVERprovided, that without the prior written consent of the CompanyCompany no change may be made that decreases the Per Share Amount (except as provided in Section 2.1(h)), Merger Sub shall not (i) reduce changes the form of consideration payable in the Offer, adds to the conditions to the Offer, decreases the number of shares of Company Common Stock sought to be purchased in the Offer, (ii) reduce extends the Offer Price, (iii) modify or add other than in a manner pursuant to the Tender Offer Conditions, (iv) change the form of consideration payable and in the Offer or (v) make any other change in accordance with the terms of this Section 2.1 or modifies or amends any condition to the Offer which in any manner that broadens such conditions or is materially adverse to the holders of shares of Company Common Stock. .
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) Business Day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.1 or as required by applicable Laws or the interpretations of the SEC (in which event the term “Expiration Date” shall mean the earliest time and date that the Offer, as so extended, may expire).
(d) Notwithstanding the foregoing sentenceor anything to the contrary set forth in this Agreement, Merger Sub may, without the consent of the Companyunless this Agreement shall have been terminated in accordance with Section 9.1, (Ai) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer. Notwithstanding Offer and (ii) if, on the foregoinginitial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Sub shall extend (xand re-extend) the Offer may not, without the Company's written consent, be extended and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of termination of this Agreement pursuant up to Section 10.1(aten (10) Business Days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (yii) of this Section 2.1(d), in no event shall Sub be required to extend the Offer may notbeyond the Termination Date; provided further, that in no event shall Sub be permitted to extend the Offer beyond the Termination Date without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date consent of the OfferCompany; and provided further, that the Regulatory Conditions foregoing clauses (as defined in Annex Ai) and (ii) of this Section 2.1(d) shall not have been satisfiedbe deemed to impair, but at such scheduled expiration date each of the other conditions set forth limit or otherwise restrict in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to any manner the right of Parent, Merger Sub Parent or the Company to terminate this Agreement pursuant to Section 9.1.
(e) In the terms hereof. Upon the terms and subject event that this Agreement is terminated pursuant to the conditions of the OfferSection 9.1, Merger Sub shall, shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty four (24) hours of such termination), promptly purchase irrevocably and unconditionally terminate the Offer.
(f) Subject to the terms and conditions of this Agreement, Sub or Parent on Sub’s behalf shall accept for payment and pay for all shares of Company Common Stock which are validly tendered on or prior to and not withdrawn promptly following the expiration of the Offer; provided, however, that without the prior written consent of the Company, Sub shall not accept for payment or pay for any shares of Company Common Stock if, as a result, Sub would acquire less than the number of shares of Company Common Stock necessary to satisfy the Minimum Condition. The time at which Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is referred to as the “Acceptance Time.” If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Sub that such Taxes either have been paid or are not applicable. The Company shall register (and shall instruct its transfer agent to register) in the name of Sub the shares of Company Common Stock accepted for payment by Sub immediately after the Acceptance Time.
(g) As soon as reasonably practicable, and in any event within twenty (20) Business Days, 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 and not withdrawnthe Merger (the “Registration Statement”). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d—4(b) under the Exchange Act (the “Preliminary Prospectus”). On the Offer Commencement Date, Parent and Acquisition Sub shall: (i) cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which will contain or incorporate by reference the Preliminary Prospectus and forms of the related letter of transmittal and summary advertisement (such Tender Offer Statement on Schedule TO and all exhibits, amendments and supplements thereto being referred to collectively in this Agreement as the “Offer Documents”); and (ii) cause the Offer Documents to be disseminated to holders of shares of Company Common Stock to the extent required by applicable Law. Parent and Sub shall use reasonable best efforts to cause the Registration Statement and the Offer Documents to comply in all material respects with applicable Law. The Company and its counsel shall be given reasonable opportunity to review and comment on the Registration Statement and the Offer Documents (including all amendments and supplements thereto) prior to the filing thereof with the SEC. Parent and Sub shall promptly provide the Company and its counsel with a copy or a description of any comments received by Parent, Sub or their counsel from the SEC or its staff with respect to the Registration Statement or the Offer Documents. Each of Parent and Sub shall use reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Registration Statement, the Offer Documents or the Offer. To the extent required by applicable Law, each of Parent, Sub and the Company shall use reasonable best efforts to (1) correct promptly any information provided by it for use in the Registration Statement or the Offer Documents to the extent that it becomes aware that such information shall have become false or misleading in any material respect and (2) take all steps necessary to promptly cause the Registration Statement and the Offer Documents, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of shares of Company Common Stock. The Company shall promptly furnish to Parent and Sub all information concerning the Company and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.1(g). Parent shall provideuse reasonable best efforts to have the Registration Statement declared effective under the Securities Act as promptly as possible after its filing and to maintain its effectiveness for so long as shall be required for the issuance of Parent Common Stock pursuant to the Offer and the Merger. Following the time the Registration Statement is declared effective, Parent shall file the final prospectus included therein under Rule 424(b) under the Securities Act.
(h) If, between the date of this Agreement and the Acceptance Time, any change in the number of issued or outstanding shares of Company Common Stock or Parent Common Stock shall occur as a result of a reclassification, recapitalization, share split (including a reverse share split), or cause combination, exchange or readjustment of shares, or any share dividend or share distribution (including any dividend or distribution of securities convertible into Company Common Stock or Parent Common Stock) with a record date during such period, the Per Share Amount shall be equitably adjusted to reflect such change.
(i) No fraction of a share of Parent Common Stock will be providedissued in connection with the Offer, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares but in lieu thereof each holder of Company Common Stock that Merger Sub becomes obligated would otherwise be entitled to purchase pursuant 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) shall in lieu of such fractional share, be paid an amount of cash (rounded to the Offernearest whole cent), without interest, equal to the product of: (i) such fraction, multiplied by (ii) the volume weighted average trading price of Parent Common Stock on Nasdaq for the five (5) consecutive trading days ending on the trading day immediately preceding the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Ipass Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof Section 7.1 and so long as none of the events or conditions set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)be existing, as promptly as practicable, but in no event later than the fifth business day five (5) Business Days after the date public announcement of the execution of this Agreement, Parent Acquisition shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer for all the issued and Merger Sub shalloutstanding shares of Company Common Stock, at the Per Share Amount. Acquisition shall accept for payment all outstanding shares of Company Common Stock which have been validly tendered and Parent shall cause Merger Sub to, commence not withdrawn pursuant to the Offer at the earliest time following the expiration of the Offer Price. The initial expiration date for that all conditions to the Offer shall be the twentieth business day following the commencement of the Offerhave been satisfied or waived by Acquisition. The obligations obligation of Merger Sub Acquisition to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, including the condition that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the a number of shares of Company Common Stock representing that number of shares of Company Common Stock which would equal more than fifty percent (50%) of the shares of Company Common Stock 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"). Acquisition expressly reserves the right to increase the price per share of Company Common Stock payable in the Offer, to waive any of the conditions of the Offer or to make any other changes in the terms and conditions of the Offer (PROVIDED that, unless previously approved by the Company (such approval to be obtained from the Company Board) in writing, no change may be made which decreases the Per Share Amount payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of shares of Company Common Stock to be purchased in the Offer, (ii) reduce which imposes conditions to the Offer Price, (iii) modify or add in addition to the Tender Offer Conditions, (iv) change Conditions or which broadens the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse scope thereof). The Per Share Amount shall be paid net to the holders seller in cash, LESS any required withholding of Common Stock. Notwithstanding the foregoing sentencetaxes, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon upon the terms and subject to the such conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all . The Company agrees that no shares of Company Common Stock which are validly held by the Company or any of its subsidiaries will be tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to in the Offer. "Business Day" means any day other than Saturday, Sunday or a federal holiday.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Huntsman Packaging Corp)
The Offer. (ab) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable, but in no event later than the fifth business day after On the date of this Agreementcommencement of the Offer, Parent and Merger Sub shallshall (i) 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, the “Schedule TO”) and related Offer to 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, and including any supplements or amendments thereto, the “Offer Documents”) and (ii) cause the Offer Documents to be disseminated to the holders of Shares as and to the extent required by applicable Law. The Company shall promptly furnish to Parent shall cause and Merger Sub to, commence in writing all information concerning the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which Company that may be waived required by applicable securities Laws or reasonably requested by Parent or Merger Sub for inclusion in their sole discretion; PROVIDEDthe Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of all material disclosure relating to (i) the company financial advisor Axxxx & Company LLC (including the amount of fees and other consideration that Axxxx & Company LLC will receive upon consummation of or as a result of the Offer and the Merger, HOWEVERand the conditions therefor), (ii) the financial advisor Nxxxxxx & Company (including the amount of fees and other consideration that Nxxxxxx & Company shall receive in connection with the opinion referred to in Section 4.20), (iii) the opinions of each of Axxxx & Company LLC and Nxxxxxx & Company referred to in Section 4.20 and (iv) the information that formed the basis for rendering each of such opinions, subject to the approval of the form of such disclosure by Axxxx & Company LLC and Nxxxxxx & 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 or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Parent and Merger Sub shall not waive use their reasonable best efforts to cause the Minimum Condition without Schedule TO as so corrected, to be filed with the prior written consent SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case, as soon as reasonably practicable and as and to the Companyextent required by applicable federal securities Laws. The Tender Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Conditions are for Documents each time before any such document is filed with the sole benefit 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, and shall inform them of any oral comments or other 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 may to provide comments on that response (to which reasonable and good faith consideration shall be asserted by Parent and Merger Sub regardless of the circumstances giving rise given).
(c) paragraph shall not be deemed to impair, limit or otherwise restrict in any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve manner the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written 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) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the OfferArticle VIII.
Appears in 1 contract
The Offer. (a) Provided Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been validly terminated in accordance with pursuant to Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shallIX, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub subject to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce to the number extent required, Topco’s receipt of shares a final approval by the DFSA (or any other relevant regulator) (A) of Common Stock any EU Prospectus required under the EU Prospectus Regulation or any other similar documents or notifications as required under other applicable Laws to be purchased in announce and make the OfferOffer and subsequently of (B) the Offer Document (as defined herein), (ii) reduce the publication of the recommendation of the Company Board to the Company Shareholders to accept the Offer Priceand tender their Company Shares to Topco in the Offer (the “Company Recommendation”) simultaneously with the publication of the Offer Document, and (iii) modify the Company or add to the Tender Offer ConditionsCompany Board or executive management not having entered into a Company Alternative Proposal, (iv) change Topco shall procure the form publication of consideration payable in the EU Prospectus and the Offer or Document and commence the Offer.
(vb) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend In the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required each Company Share accepted by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth Topco in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon accordance with the terms and subject to the conditions of the Offer (including that each Company Shareholder must tender in respect of all, and not just some, Company Shares held by it and excluding any Company Shares subject to a Cash Election) shall be exchanged for newly and validly issued, fully paid and nonassessable Topco Shares on the basis of the Company Exchange Ratio; provided that to the extent that a Company Shareholder makes a Cash Election, it shall receive up to USD 1,000 in cash, payable in DKK (with such amount payable in DKK translated from USD 1,000 at the Exchange Rate on the date two (2) Business Days prior to the publication of the Offer Document) (the “Cash Consideration”), equal to the product of (A) the number of Company Shares subject to the Cash Election, (B) the Company Exchange Ratio and (C) the Parent VWAP; provided, however, that the aggregate Cash Consideration to be paid in the Offer shall not exceed USD 50 million (the “Cash Consideration Cap”) and, to the extent the aggregate Cash Consideration payable to Company Shareholders would exceed the Cash Consideration Cap, the Company Shareholders making a Cash Election shall receive their pro rata portion of cash equal to the Cash Consideration Cap (the Topco Shares and cash payable in the Offer, Merger Sub shall“Offer Consideration”), subject to the other provisions of this Article III.
(c) The Offer shall be made by means of an offer document approved by the DFSA in accordance with the Takeover Order (the “Offer Document”) that is disseminated to holders of Company Shares pursuant to the Takeover Order and contains, to the extent required by the Takeover Order, the terms and conditions set forth in this Agreement (including Exhibit D). The Offer shall not be made, and the Company Shares will not be accepted for purchase from or on behalf of persons, in any jurisdiction in which the making or acceptance thereof would not be in compliance with the securities or other Laws or regulations of such jurisdiction or would require any registration, approval or filing with any regulatory authority not expressly contemplated by this Agreement. Topco shall take all reasonable endeavours to consummate the Offer, subject to the terms and conditions hereof (including Exhibit D). The obligation of Topco to accept for exchange or, in the case of the Cash Election Shares, cash purchase (and the obligation of Parent shall to cause Merger Sub toTopco to accept for exchange and cash purchase, promptly purchase all shares of Common Stock which are as applicable) Company Shares validly tendered on or (and not validly withdrawn) pursuant to the Offer shall be subject only to (i) the condition that, prior to the expiration of the Offer Offer, there have been validly tendered and not withdrawn. validly withdrawn in accordance with the terms of the Offer a number of Company Shares that, upon the consummation of the Offer, together with the Company Shares then owned by Topco and Parent (if any) (excluding any treasury shares held by the Company and Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depositary for the Offer pursuant to such procedures), would represent at least 80% of the then outstanding Company Shares and voting rights of the Company immediately after the consummation of the Offer (the “Minimum Acceptance Condition”); and (ii) the other conditions set forth in Exhibit D.
(d) Subject to the occurrence of the Parent Merger Closing, Topco expressly reserves the right to waive or modify the conditions to the Offer as set forth in clauses (A), (C) to (I) and (K) of Exhibit D, subject to applicable Law, and to make any change in the terms of, or conditions to, the Offer; provided, however, that notwithstanding anything to the contrary set forth herein, without the prior written consent of the Company in its sole discretion, Topco may not (and Parent shall providenot permit Topco to) (i) waive the Minimum Acceptance Condition (other than the percentage included therein, which may be lowered by Topco in its sole discretion to not less than 70%) or (ii) make any change in the terms of or conditions to the Offer that (A) changes the form of consideration to be paid in the Offer, (B) reduces the Offer Consideration to be paid in the Offer (other than in each case an adjustment made pursuant to Section 4.1(i)), (C) extends the Offer, other than in a manner required or permitted by
Section 3.1 (f), or cause to be provided(D) except as otherwise permitted in this Section 3.1(d), to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares amends or modifies any term of Common Stock that Merger Sub becomes obligated to purchase pursuant or condition to the OfferOffer (including the conditions in Exhibit D) in any manner that has an adverse effect, or would be reasonably likely to have an adverse effect, on the Company Shareholders that is not de minimis.
Appears in 1 contract
Samples: Business Combination Agreement
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are or be continuing (unless such event shall have been waived by Parent or Merger Subother than the requirements set forth in clauses (i)-(iv) of Annex A), Purchaser shall commence the Offer as promptly as practicablereasonably practicable after the date hereof, but in no event later than the fifth 5 business day days after the date initial public announcement of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, Purchaser's intention to commence the Offer at the Offer PriceOffer. The initial expiration date obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject to the twentieth satisfaction of each of the conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, 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 Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A; and PROVIDED FURTHER that the condition in clause (iv) of Annex A may not be waived by Purchaser nor may any change be made to such condition without the consent of the Company. Purchaser shall from time to time extend the Offer beyond the scheduled expiration date, which shall initially be 20 business day days following the commencement of the Offer. The obligations , for up to 5 business days in each instance (or for such different period to which the Company shall reasonably agree) if, at the scheduled expiration of Merger Sub the Offer, any of the conditions to Purchaser's obligation to accept for payment and to pay for any shares Shares shall not be satisfied or waived. In addition, if all of Common Stock tendered shall be subject only the conditions to the Tender Offer Conditions, any of which may be are satisfied or waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce but the number of shares of Class A Common Stock validly tendered and not withdrawn, together with the shares of Class A Common Stock held by Parent and Purchaser, if any, is less than ninety percent (90%) of the then-outstanding number of shares of Class A Common Stock (assuming the conversion by Parent of all shares of Class B Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Class A Common Stock have not been satisfied or waived, until as contemplated by the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination last sentence of this Agreement pursuant to Section 10.1(a) and (y) 1.01(a)), then upon the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled applicable expiration date of the Offer, Purchaser shall provide "subsequent offering periods," as such term is defined in, and in accordance with, Rule 14d-11 under the Regulatory Conditions Exchange Act, for an aggregate period not to exceed twenty (as defined in Annex 20) business days (for all such extensions) and Purchaser shall (A) shall not have been satisfied, but at give the required notice of such scheduled subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered as of such applicable expiration date each date. Subject to the terms of the other conditions set forth in Annex A (other than the Minimum Condition) Offer, Purchaser shall then be satisfied, accept for payment and pay for all Shares at the request earliest time at which it is permitted to do so under applicable law. Purchaser shall take all necessary action to cause all shares of Class B Common Stock so accepted to be converted to shares of Class A Common Stock as promptly as practicable on the date such shares are accepted by Purchaser or on any subsequent date prior to the Effective Time if, and only if, such conversion would permit Purchaser to acquire shares of Class A Common Stock representing at least 90% of the Company, Merger Sub shall extend the Offer from time to timethen outstanding Class A Common Stock.
(b) The Per Share Amount shall, subject to the right applicable withholding of ParentTaxes (as hereinafter defined), Merger Sub or the Company to terminate this Agreement pursuant be net to the terms hereof. Upon seller in cash, upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent . Purchaser shall cause Merger Sub to, promptly purchase pay for all shares of Common Stock which are Shares validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept withdrawn promptly following the acceptance of Shares for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase payment pursuant to the Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"). If the payment equal to the Per Share Amount in cash is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(c) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser 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"). Parent, Purchaser and the Company 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 Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws to give effect to the Offer. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X VII hereof and so long as none of the events conditions set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing or be existing, within seven (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable, but in no event later than the fifth business day after 7) Business Days of the date hereof, Merger Sub will commence a tender offer (the "Offer") for all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "Company Common Stock") at a price per share of the Company Common Stock of U.S. $24.00 net to the seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, Parent and Merger Sub shallincluding Annex A hereto.
(b) Provided that this Agreement shall not have been terminated in accordance with Article VII hereof, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the Tender satisfaction or waiver of the Offer Conditions, any Conditions including the condition that at least that number of which may be waived by Parent or shares of Company Common Stock equivalent to a majority of the total issued and outstanding shares of Company Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"). Merger Sub in their sole discretion; PROVIDEDwill not, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for Company (such consent to be authorized by the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not Company Board): (i) reduce waive the number of shares of Common Stock to be purchased in the OfferMinimum Condition, (ii) reduce decrease the Offer Price, (iii) modify amount or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or Offer, (iii) decrease the number of shares of Company Common Stock sought in the Offer, (iv) impose additional conditions to the Offer, (v) make change any Offer Condition or amend any other change in the terms term of the Offer which is if any such change or amendment would be materially adverse to the holders of the Company Common StockStock (other than Parent or Merger Sub) or (vi) except as provided below, extend the Offer if all of the Offer Conditions have been satisfied. Notwithstanding Subject to the foregoing sentenceterms and conditions hereof, Merger Sub maythe Offer shall 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 Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")); provided, however, that without the consent of the CompanyCompany Board, Merger Sub may (Aw) extend the Offer, if at the then scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or waived for one (1) or more periods (none of which shall exceed ten (10) Business Days) until such time as such conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been are satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (Cx) extend the Offer for any such period as may be required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission ("SEC") or the staff thereof applicable to the Offer. Notwithstanding , (y) extend the foregoing, Offer for one (1) or more periods (each such period to be for not more than five (5) Business Days and such extensions to be for an aggregate period of not more than twenty (20) Business Days beyond the latest expiration date that would otherwise be permitted under clause (w) or (x) of this sentence) if on such expiration date the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent Conditions shall have been satisfied or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) waived but there shall not have been satisfied, but at such scheduled expiration date each tendered that number of shares of Company Common Stock which would equal more than 80% of the other conditions set forth in Annex A outstanding shares of Company Common Stock or (other than the Minimum Conditionz) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to timefor any reason for one (1) or more periods, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause each period to be provided, for not more than ten (10) Business Days and such extensions to Merger Sub on a timely basis all funds necessary to accept be for payment, and pay for, all shares an aggregate period of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.not more than
Appears in 1 contract
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Article X hereof its terms and so long as provided that none of the events set forth in clause (iv) of Annex A shall have occurred and subject to 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, Sub shall (and Parent shall cause Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable, and in any event within twenty (20) Business Days, after the date hereof. Following such launch, each of Parent and Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof.
(b) The obligation of Sub to accept for payment, purchase and pay for any shares of Company Common Stock 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 shares of Company Common Stock validly tendered and not withdrawn prior to the expiration date of the Offer (other than shares of Company Common Stock tendered by guaranteed delivery that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer), when added to any shares of Company Common Stock already owned by Parent or any of its controlled subsidiaries, if any, equals a majority of the then outstanding shares of Company Common Stock and (y) the other conditions set forth in Annex A hereto (the "conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions"”). Sub expressly reserves the right (but shall not be obligated) shall have occurred and are continuing (unless such event shall have been waived by Parent at any time or Merger Sub)from time to time, as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their its sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not to amend or waive any such condition (other than the Minimum Condition without which may not be amended or waived), to increase the prior written consent price per share of Company Common Stock payable in the Company. The Tender Offer Conditions are for the sole benefit of Parent Offer, and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to make any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub other changes in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms and conditions of the Offer; PROVIDED HOWEVERprovided, that without the prior written consent of the CompanyCompany no change may be made that decreases the Per Share Amount (except as provided in Section 2.1(h)), Merger Sub shall not (i) reduce changes the form of consideration payable in the Offer, adds to the conditions to the Offer, decreases the number of shares of Company Common Stock sought to be purchased in the Offer, (ii) reduce extends the Offer Price, (iii) modify or add other than in a manner pursuant to the Tender Offer Conditions, (iv) change the form of consideration payable and in the Offer or (v) make any other change in accordance with the terms of this Section 2.1 or modifies or amends any condition to the Offer which in any manner that broadens such conditions or is materially adverse to the holders of shares of Company Common Stock. .
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) Business Day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.1 or as required by applicable Laws or the interpretations of the SEC (in which event the term “Expiration Date” shall mean the earliest time and date that the Offer, as so extended, may expire).
(d) Notwithstanding the foregoing sentenceor anything to the contrary set forth in this Agreement, Merger Sub may, without the consent of the Companyunless this Agreement shall have been terminated in accordance with Section 9.1, (Ai) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer. Notwithstanding Offer and (ii) if, on the foregoinginitial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Sub shall extend (xand re-extend) the Offer may not, without the Company's written consent, be extended and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of termination of this Agreement pursuant up to Section 10.1(aten (10) Business Days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (yii) of this Section 2.1(d), in no event shall Sub be required to extend the Offer may notbeyond the Termination Date; provided further, that in no event shall Sub be permitted to extend the Offer beyond the Termination Date without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date consent of the OfferCompany; and provided further, that the Regulatory Conditions foregoing clauses (as defined in Annex Ai) and (ii) of this Section 2.1(d) shall not have been satisfiedbe deemed to impair, but at such scheduled expiration date each of the other conditions set forth limit or otherwise restrict in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to any manner the right of Parent, Merger Sub Parent or the Company to terminate this Agreement pursuant to Section 9.1.
(e) In the terms hereof. Upon the terms and subject event that this Agreement is terminated pursuant to the conditions of the OfferSection 9.1, Merger Sub shall, shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty four (24) hours of such termination), promptly purchase irrevocably and unconditionally terminate the Offer.
(f) Subject to the terms and conditions of this Agreement, Sub or Parent on Sub’s behalf shall accept for payment and pay for all shares of Company Common Stock which are validly tendered on or prior to and not withdrawn promptly following the expiration of the Offer; provided, however, that without the prior written consent of the Company, Sub shall not accept for payment or pay for any shares of Company Common Stock if, as a result, Sub would acquire less than the number of shares of Company Common Stock necessary to satisfy the Minimum Condition. The time at which Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is referred to as the “Acceptance Time.” If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing shares of Company Common Stock is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Sub that such Taxes either have been paid or are not applicable. The Company shall register (and shall instruct its transfer agent to register) in the name of Sub the shares of Company Common Stock accepted for payment by Sub immediately after the Acceptance Time.
(g) As soon as reasonably practicable, and in any event within twenty (20) Business Days, 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 and not withdrawnthe Merger (the “Registration Statement”). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d–4(b) under the Exchange Act (the “Preliminary Prospectus”). On the Offer Commencement Date, Parent and Acquisition Sub shall: (i) cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which will contain or incorporate by reference the Preliminary Prospectus and forms of the related letter of transmittal and summary advertisement (such Tender Offer Statement on Schedule TO and all exhibits, amendments and supplements thereto being referred to collectively in this Agreement as the “Offer Documents”); and (ii) cause the Offer Documents to be disseminated to holders of shares of Company Common Stock to the extent required by applicable Law. Parent and Sub shall use reasonable best efforts to cause the Registration Statement and the Offer Documents to comply in all material respects with applicable Law. The Company and its counsel shall be given reasonable opportunity to review and comment on the Registration Statement and the Offer Documents (including all amendments and supplements thereto) prior to the filing thereof with the SEC. Parent and Sub shall promptly provide the Company and its counsel with a copy or a description of any comments received by Parent, Sub or their counsel from the SEC or its staff with respect to the Registration Statement or the Offer Documents. Each of Parent and Sub shall use reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Registration Statement, the Offer Documents or the Offer. To the extent required by applicable Law, each of Parent, Sub and the Company shall use reasonable best efforts to (1) correct promptly any information provided by it for use in the Registration Statement or the Offer Documents to the extent that it becomes aware that such information shall have become false or misleading in any material respect and (2) take all steps necessary to promptly cause the Registration Statement and the Offer Documents, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of shares of Company Common Stock. The Company shall promptly furnish to Parent and Sub all information concerning the Company and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.1(g). Parent shall provideuse reasonable best efforts to have the Registration Statement declared effective under the Securities Act as promptly as possible after its filing and to maintain its effectiveness for so long as shall be required for the issuance of Parent Common Stock pursuant to the Offer and the Merger. Following the time the Registration Statement is declared effective, Parent shall file the final prospectus included therein under Rule 424(b) under the Securities Act.
(h) If, between the date of this Agreement and the Acceptance Time, any change in the number of issued or outstanding shares of Company Common Stock or Parent Common Stock shall occur as a result of a reclassification, recapitalization, share split (including a reverse share split), or cause combination, exchange or readjustment of shares, or any share dividend or share distribution (including any dividend or distribution of securities convertible into Company Common Stock or Parent Common Stock) with a record date during such period, the Per Share Amount shall be equitably adjusted to reflect such change.
(i) No fraction of a share of Parent Common Stock will be providedissued in connection with the Offer, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares but in lieu thereof each holder of Company Common Stock that Merger Sub becomes obligated would otherwise be entitled to purchase pursuant 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) shall in lieu of such fractional share, be paid an amount of cash (rounded to the Offernearest whole cent), without interest, equal to the product of: (i) such fraction, multiplied by (ii) the volume weighted average trading price of Parent Common Stock on Nasdaq for the five (5) consecutive trading days ending on the trading day immediately preceding the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (PARETEUM Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof VII, then (i) not later than the first Business Day (as defined below) after execution of this Agreement, the Parent and so long as none the Company shall issue a public announcement of the events set forth in Annex A hereto execution of this Agreement and (the "Tender Offer Conditions"ii) shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Sub shall, as promptly soon as practicable, but in no event later than the fifth business day ten Business Days after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub tosuch announcement, commence (within the meaning of Rule 14d-2(a) under the Exchange Act (as defined below)) the Offer to purchase all of the outstanding shares of the Company Common Stock at the Offer Priceprice of $10 per share, net to the seller of such shares in cash (such price, or such higher price per share of the Company Common Stock as may be paid in the Offer, the "PRICE PER SHARE"). The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of the Company Common Stock tendered pursuant to the Offer shall be subject only to (A) at least that number of shares of the Tender Company Common Stock equivalent to a majority of the total issued and outstanding shares of the Company Common Stock on a fully diluted basis (assuming the exercise of all outstanding Options (as defined in Section 3.1(b)(i) (other than Options held by the Management Group (as defined below)) and any other rights to acquire shares of the Company Common Stock) on the date such shares are purchased pursuant to the Offer Conditionsbeing validly tendered and not withdrawn prior to the expiration of the Offer (the "MINIMUM CONDITION"), and (B) the satisfaction of the other conditions set forth in ANNEX A hereto, which is incorporated herein by reference, any of which conditions may be waived by the Parent or Merger Sub in their its sole discretion; PROVIDED, HOWEVER, that Merger Sub the Parent shall not waive the Minimum Condition or the Antitrust Condition (as defined below) without the prior written consent of the Company. The Tender Offer Conditions are for Company agrees that no shares of the sole benefit Company Common Stock held by the Company or any of Parent and its Subsidiaries (as defined below) will be tendered to Merger Sub and may be asserted by Parent and Merger Sub regardless of pursuant to the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Offer.
(b) The Parent and Merger Sub expressly reserve the right right, in their sole discretion, to modify make any changes in the terms and conditions of the Offer; PROVIDED HOWEVER, provided that without the prior written consent of the Company, neither the Parent nor Merger Sub shall not will (i) reduce decrease the number of shares of Common Stock to be purchased Price Per Share payable in the Offer, (ii) reduce decrease the number of shares of the Company Common Stock sought pursuant to the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer Offer, (iii) add, waive, change or (v) make any other change in amend the terms of or conditions to the Offer which is materially (including the conditions set forth in ANNEX A hereto) in any manner adverse to the holders of shares of the Company Common Stock. Notwithstanding Stock or (iv) change the foregoing sentenceexpiration date of the Offer; PROVIDED, HOWEVER, that if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after the commencement date of the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for one or more periods of up to ten additional Business Days each (but in no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the Outside Date (as defined below)); provided, further, that if on any scheduled expiration date of the Offer, the Offer shall not have been consummated (A) due to the failure to satisfy the Minimum Condition or any of the conditions set forth in paragraphs (a), (b), (d)(i) (so long as with respect to paragraph (d)(i), the relevant representation or warranty is reasonably capable of being cured within ten calendar days by the exercise of reasonable best efforts and an executive officer of the Company certifies in writing that such representation or warranty is reasonably capable of being cured by the Company within ten calendar days through the exercise of such reasonable best efforts) and (e) of Annex A (except with respect to paragraph (d)(i), other than as a result of a breach by the Company), at the request of the Company, Merger Sub shall from time to time extend the expiration date of the Offer for one or more periods of up to ten additional Business Days each for up to an aggregate of 20 Business Days (but in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); or (B) due to the failure to satisfy the condition to the Offer relating to the expiration or termination of the waiting period under the HSR Act (as defined below) or the compliance with any applicable foreign legal requirements relating to competition (collectively, the "Antitrust Condition") or the Financing Condition (as defined in Annex A), then, at the request of the Company, Merger Sub shall extend any such expiration date of the Offer for one or more periods of up to ten additional Business Days each (but in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and PROVIDED, FURTHER, that Merger Sub may, (1) without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof (as defined below) applicable to the Offer. Notwithstanding Offer in the foregoing, event of an increase in the Price Per Share or as otherwise required by law and (2) extend the Offer in accordance with Rule 14d-11 under the Exchange Act if (x) the conditions to the Offer may notshall have been satisfied or waived and shall not apply to any extension, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may notnumber of shares of the Company Common Stock that have been validly tendered and not withdrawn represent more than 50% but less than 90% of the issued and outstanding shares of the Company Common Stock and (z) Merger Sub shall accept and promptly pay for all shares of Company Common Stock validly tendered and not withdrawn; PROVIDED, without HOWEVER, that in no event shall the Company's prior written consent, be extended pursuant to extensions permitted under the foregoing clause (A2) above if exceed, in the failure to satisfy any condition was caused by a material breach by Parent or aggregate, ten Business Days. The Parent, Holdings and Merger Sub of any of their representationswill, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing subject to the contrary in terms and conditions of this Agreement, Parent and Merger Sub agree that if immediately prior use their reasonable best efforts to any scheduled expiration date of consummate the Offer, . Assuming the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each prior satisfaction or waiver of all the other conditions to the Offer set forth in Annex A (other than the Minimum Condition) shall then be satisfiedA, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the terms and conditions of the Offerthis Agreement, (i) Merger Sub shall, and the Parent shall cause Merger Sub to, promptly accept for payment, purchase and pay for, in accordance with the terms of the Offer, all shares of the Company Common Stock which are validly tendered on or prior and not withdrawn pursuant to the expiration Offer as soon as practicable, recognizing that the parties wish to close as expeditiously as possible following satisfaction of the Offer Antitrust Condition, and not withdrawn. (ii) the Parent shall provide, or cause to be provided, to Merger Sub Sub, on a timely basis all basis, the funds necessary to accept for payment, and pay for, all purchase any shares of the Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer. Merger Sub may, at any time, transfer or assign to one or more corporations directly or indirectly wholly-owned by the Parent the right to purchase all or any portion of the shares tendered pursuant to the Offer, provided that any such transfer or assignment shall not prejudice the rights of tendering stockholders to receive payment for shares of Company Common Stock properly tendered and accepted for payment.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Section 9.1, as promptly as practicable, possible but in no event later than the fifth five (5) business day days after the date public announcement of this Agreementthe execution hereof by the parties, Parent and Merger Sub shall, and Parent GP shall cause Merger Sub toAcquisition to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the "Exchange Act"), the Offer; and to cause Acquisition to use its best efforts to consummate the Offer, including, without limitation, engaging an information agent in connection therewith. Acquisition shall accept for payment issued and outstanding shares of common stock, $0.001 par value of the Company (individually a "Share" and collectively, the "Shares") together with the associated Rights which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer Pricethat all conditions to the Offer shall have been satisfied or waived by Acquisition. The initial expiration date obligation of Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the twentieth business day following condition that the commencement number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (the "Minimum Stock Condition") and the other conditions set forth in Article 7. The obligations of Merger Sub Acquisition expressly reserves the right to accept for payment waive any such condition, to increase the Per Share Amount, and to pay for make any shares other changes in the terms and conditions of Common Stock tendered shall be subject only to the Tender Offer ConditionsOffer; provided, any of which however, that Parent, GP and Acquisition agree that no change may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition made without the prior written consent of the CompanyCompany which decreases the Per Share Amount, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of shares to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (on a fully-diluted basis), which otherwise modifies or amends the conditions to the Offer or any other term of the Offer in a manner that is materially adverse to the holders of the Shares, which imposes conditions to the Offer in addition to those set forth in Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (except that Acquisition may extend the expiration date of the Offer beyond September 30, 1999 as required to comply with any rule, regulation or interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). The Tender Offer Conditions It is agreed that the conditions set forth in Article 7 are for the sole benefit of Parent and Merger Sub Acquisition and may be asserted by Parent and Merger Sub Acquisition regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, condition (including any action or inaction by Acquisition) or may be waived by Parent and Merger Sub Acquisition, in whole or in partpart at any time and from time to time, in its sole discretion. The failure by Acquisition 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 which may be asserted at any time and from time to time. 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 such conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) As soon as practicable after the date hereof, Parent, GP and Acquisition agree that Parent, GP and Acquisition shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall include an offer to purchase and form of transmittal letter (together with any amendments thereof or supplements thereto, collectively the "Offer Documents"). 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 or dissemination to the stockholders of the Company. Parent and Merger Sub expressly reserve Acquisition agree to provide the right to modify the terms of the Offer; PROVIDED HOWEVERCompany and its counsel with any comments which Parent, that without the prior written 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) modify Acquisition or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer their counsel may receive from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof of the SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws. The information provided and to the Offer. Notwithstanding the foregoingbe provided by Parent, (x) GP and Acquisition for use in the Offer may Documents shall not, without on the date filed with the SEC and on the date first published or sent or given to the Company's written consentstockholders, be extended beyond as the date case may be, contain any untrue statement of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent fact nor omit to state any material fact required to be stated therein or Merger Sub of any of their representationsnecessary in order to make the statements therein, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date light of the Offercircumstances under which they were made, the Regulatory Conditions (as defined in Annex A) shall not have been satisfiedmisleading, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfiedprovided, at the request of the Companyhowever, Merger Sub shall extend the Offer from time to time, subject to the right of that no representation or warranty is made by Parent, Merger Sub GP or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub Acquisition with respect to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that this The Merger Agreement shall not have been terminated in accordance with Article X hereof provides that, upon the terms and so long as none of subject to the events set forth in Annex A hereto (conditions thereof, Purchaser will commence the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as reasonably practicable, but in no event later than the fifth five business day days after the date initial public announcement of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, Purchaser's intention to commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations obligation of Merger Sub Purchaser to accept for payment and to pay for any shares of Common Stock Shares tendered shall be subject only pursuant to the Tender Offer Conditions, any is subject to the satisfaction of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. and certain other conditions that are described in "The Tender Offer - 9. Conditions are for to the sole benefit of Parent and Merger Sub and Offer." Purchaser has agreed that no change in the Offer may be asserted by Parent made which waives the Minimum Condition, and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, no change may be waived by Parent and Merger Sub made which decreases the price per Share payable in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without which changes the prior written consent form of consideration, which reduces the Company, Merger Sub shall not (i) reduce the maximum number of shares of Common Stock Shares to be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add which makes changes to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially are otherwise adverse to the holders of Common StockCompany or the Public Stockholders or which imposes conditions to the Offer in addition to those set forth in "The Tender Offer - 9. Notwithstanding Conditions to the foregoing sentence, Merger Sub may, Offer" hereof without the prior consent of the Company. The Merger. The Merger Agreement provides that, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon upon the terms and subject to the conditions thereof, and in accordance with Delaware Law, at the Effective Time, Purchaser shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Purchaser will cease and the Company will continue as the Surviving Corporation of the Merger. At the Effective Time, by virtue of the Merger and without any action on the part of Purchaser, the Company or holders of any Shares, (a) each Share issued and outstanding immediately prior to the Effective Time (other than any Shares held in the treasury of the Company, or owned by Purchaser, any Affiliate of Purchaser or any direct or indirect subsidiary of the Company and any Shares which are held by stockholders who have not voted in favor of the Merger or consented thereto in writing and who shall have demanded properly in writing appraisal for such Shares in accordance with Delaware Law) shall be cancelled and converted automatically into the right to receive $7.875 per Share in cash or such higher price paid in the Offer (the "Merger Consideration") payable, after reduction for any required Tax withholding, without interest, to the holder of such Share, upon surrender, in the manner provided in the Letter of Transmittal, of the certificate that formerly evidenced such Share; (b) each Share held in the treasury of the Company and each Share owned by Purchaser, any Affiliate of Purchaser or any direct or indirect wholly owned subsidiary of the Company immediately prior to the Effective Time shall be canceled without any conversion thereof and no payment or distribution will be made with respect thereto; and (c) each share of Class A Common Stock, par value $.01 per share, of Purchaser issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of Class A Common Stock, par value $.50 per share, of the Surviving Corporation, and each share of Class B Common Stock, par value $.01 per share, of Purchaser issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of Class B Common Stock, par value $.50 per share, of the Surviving Corporation. The Merger Agreement provides that the directors of Purchaser immediately prior to the Effective Time will be the initial directors of the Surviving Corporation and that the officers of the Company immediately prior to the Effective Time will be the initial officers of the Surviving Corporation, in each case until their respective successors are duly elected or appointed and qualified. The Merger Agreement provides that, at the Effective Time, the Certificate of Incorporation of the Company restated in the form attached to the Merger Agreement will be the Certificate of Incorporation of the Surviving Corporation. The Merger Agreement also provides that the By-laws of the Company, as in effect immediately prior to the Effective Time, will be the By-laws of the Surviving Corporation. The Merger Agreement provides that each Company Stock Option outstanding at the Effective Time under the Company Stock Option Plan shall be canceled by the Company immediately prior to the Effective Time, and each holder of a canceled Company Stock Option shall be entitled to receive at the Effective Time or as soon as practicable thereafter from the Company in consideration for the cancellation of such Company Stock Option an amount equal to the product of (i) the number of Shares previously subject to such Company Stock Option, and (ii) the excess, if any, of the Merger Consideration over the exercise price per share of Shares previously subject to such Company Stock Option, which shall be paid in cash, after reduction for applicable tax withholding. The Merger Agreement provides that notwithstanding any provision of the Merger Agreement to the contrary, Shares that are outstanding immediately prior to the Effective Time and which are held by stockholders who shall have not voted in favor of the Merger or consented thereto in writing and who shall have demanded properly in writing appraisal for such Shares in accordance with Section 262 of Delaware Law shall not be converted into or represent the right to receive the Merger Consideration. Such stockholders shall be entitled to receive payment of the appraised value of such Shares held by them in accordance with the provisions of such Section 262, except that all Dissenting Shares held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such Shares under such Section 262 shall thereupon be deemed to have been converted into and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without any interest thereon, upon surrender, in the manner provided in the Merger Agreement, of the certificate or certificates that formerly evidenced such Shares. Agreements of Purchaser and the Company. Pursuant to the Merger Agreement, the Company shall, if required by applicable law in order to consummate the Merger, duly call, give notice of, convene and hold an annual or special meeting of its stockholders as soon as practicable following consummation of the Offer for the purpose of considering and taking action on the Merger Agreement and the transactions contemplated thereby (the "Stockholders' Meeting"). The Merger Agreement also provides that subject to its fiduciary duties under applicable law as advised by independent counsel, if the Minimum Condition shall not have been satisfied and such condition shall have been waived by Purchaser, at the Stockholders' Meeting Purchaser will cause all Shares then owned by it and the Shares under its control to be voted in favor of the Merger. The Merger Agreement provides that, notwithstanding the preceding paragraph, in the event that Purchaser shall acquire at least 90 percent of the then outstanding Shares of each class, subject to certain conditions, Purchaser and the Company agree to take all necessary and appropriate action to cause the Merger to become effective in accordance with Section 263 of Delaware Law as soon as reasonably practicable after such acquisition, without a meeting of the Company's stockholders. The Merger Agreement provides that the Company will, if required by applicable law, as soon as practicable following consummation of the Offer, file an information or proxy statement (the "Proxy Statement") with the under the Exchange Act, and use best efforts to have the Proxy Statement cleared by the Commission. Purchaser and the Company will cooperate with each other in the preparation of the Proxy Statement, and the Company will notify Purchaser of the receipt of any comments of the Commission with respect to the Proxy Statement. The Merger Sub Agreement further provides that the Certificate of Incorporation of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in Article Eighth of the Certificate of Incorporation of the Company, which provisions shall not be amended, repealed or otherwise modified for a period of ten years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who at the Effective Time were directors, officers, employees, fiduciaries or agents of the Company, unless such modification shall be required by law. The Merger Agreement provides that the Company shall, to the fullest extent permitted under applicable law and Parent regardless of whether the Merger becomes effective, indemnify and hold harmless, and, after the Effective Time, the Surviving Corporation shall, to the fullest extent permitted under applicable law, indemnify and hold harmless, each present and former director, officer, employee, fiduciary and agent of the Company (collectively, the "Indemnified Parties") against all costs and expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in their capacity as an officer, director, employee, fiduciary or agent, whether occurring before or after the Effective Time, for a period of ten years after the date hereof. The Merger Agreement provides that the Surviving Corporation shall cause Merger Sub touse its best efforts to maintain in effect for six years from the Effective Time, promptly purchase all shares if available, the current directors' and officers' liability insurance policies maintained by the Company (provided that the Surviving Corporation may substitute therefor policies of Common Stock at least the same coverage containing terms and conditions which are validly tendered on or not materially less favorable) with respect to matters occurring prior to the expiration Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this provision: for the period beginning at the Effective Time and ending three years thereafter, more than an amount per year equal to 300% of current annual premiums (the "Current Annual Premiums") paid by the Company for such insurance, and (ii) for the period beginning on the third anniversary of the Offer Effective Time and not withdrawn. Parent shall provideending three years thereafter, or cause more than an amount per year equal to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares 200% of Common Stock that Merger Sub becomes obligated to purchase pursuant to the OfferCurrent Annual Premiums.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of Subject to the events conditions set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)EXHIBIT A, as promptly as practicable, but in no event later than the fifth business day practicable after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer at within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and deliver any payment for, any shares of Company Common Stock tendered pursuant to the Offer Price. are subject to no conditions other than the conditions set forth in EXHIBIT A. The initial expiration date for of the Offer shall be the twentieth 20th business day following the commencement of the Offer. The obligations Offer (determined using Rule 14d-1(g)(3) under the Securities Exchange Act of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to 1934, as amended (the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part"EXCHANGE ACT")). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer; PROVIDED HOWEVER, that except that, without the prior written consent of the CompanyCompany (expressed in a resolution adopted by both the Special Committee and the Company Board), Parent and Merger Sub shall not (i) reduce the number amount of consideration per share of Company Common Stock or change the form of consideration to be paid pursuant to the Offer or reduce the percentage of shares of Company Common Stock offered to be purchased acquired in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable conditions set forth in the Offer EXHIBIT A or (v) make modify any other change condition set forth in the terms of the Offer which is materially EXHIBIT A in any manner adverse to the holders of Company Common StockStock (other than the Affiliate Shareholders) or (iii) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock (other than the Affiliate Shareholders). The Company agrees that no Company Common Stock held by the Company (including shares of Company Common Stock held in treasury by the Company) will be tendered pursuant to the Offer. Notwithstanding the foregoing sentenceforegoing, Parent and Merger Sub may, without the consent of the Company, (Ai) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Parent's and Merger Sub's obligations obligation to purchase the shares of Company Common Stock have are not been satisfied, until such time as such conditions are satisfied or irrevocably waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (Cii) 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. Notwithstanding Offer and (iii) extend the foregoingOffer for any reason for a period of not more than 5 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence but in no event ending later than the date set forth in Section 8.01(b)(i) and only so long as Parent and Merger Sub shall have waived each of the conditions set forth in EXHIBIT A. In the event that Parent and Merger Sub are unable to consummate the Offer on the initial scheduled expiration date due to the failure of the conditions set forth in EXHIBIT A to be satisfied or waived, except to the extent that such conditions are incapable of being satisfied, Parent and Merger Sub shall not terminate the Offer and shall extend the Offer (for no more than 10 business days without the consent of the Special Committee) and set a subsequent scheduled expiration date, and shall continue to so extend the Offer under such circumstances and set subsequent scheduled expiration dates until the earlier of (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) that such conditions are satisfied or waived and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements date set forth in this AgreementSection 8.01(b)(i). Notwithstanding any thing to In addition, notwithstanding the contrary in this Agreementforegoing, Parent and Merger Sub agree that if immediately shall provide a "subsequent offering period", in accordance with Rule 14d-11 under the Exchange Act, of a number of days ending on the earliest to occur of (i) 20 business days following commencement of such subsequent offering period, (ii) the business day prior to any scheduled expiration date of the Offer, the Regulatory Conditions Closing Date (as defined in Annex ASection 1.04) shall not have been satisfiedand (iii) December 31, but at such scheduled expiration date each of 2000, if extending the other conditions set forth in Annex A (other than the Minimum Condition) shall then subsequent offering period beyond December 31, 2000 would reasonably be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time expected to time, subject to the right of adversely affect Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Parent and Merger Sub shall, shall (i) if the conditions set forth in EXHIBIT A have been satisfied or waived by Parent and Parent shall cause Merger Sub toand the Offer has expired, promptly purchase accept for payment all shares of Company Common Stock which are validly tendered and not withdrawn pursuant to the Offer, (ii) deliver payment for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub become obligated to purchase upon expiration of the Offer or initial period of the Offer, as applicable, as soon as practicable after such expiration and (iii) deliver payment for any shares of Company Common Stock validly tendered pursuant to the Offer during the subsequent offer period that Parent and Merger Sub are obligated to purchase promptly upon such tender. The parties agree and acknowledge that neither the acceptance for payment nor payment for any shares of Company Common Stock pursuant to the Offer will affect the Company's obligation to pay any dividends on such shares with a record date prior to such acceptance for payment or payment that may have been declared by the Company in accordance with the terms of this Agreement or prior to the expiration date of this Agreement and which remain unpaid at the Offer and not withdrawntime of such acceptance for payment or payment. Parent shall provide, will not issue certificates or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all scrip representing fractional shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer. Parent will pay cash in lieu of fractional shares in accordance with Section 2.02(d).
(b) As soon as practicable after the date of this Agreement and consistent with applicable law, Parent shall (i) file or submit for review on a confidential basis and ultimately file with the SEC a registration statement on Form F-4, which will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act and the information required pursuant to Rule 13e-3 under the Exchange Act, to register the offer and sale of Parent ADSs (as defined in Section 2.01(c)), as evidenced by Parent ADRs (as defined in Section 2.01(c)), and the Parent Ordinary Shares (as defined in Section 2.01(c)) underlying the Parent ADSs, pursuant to the Offer (as supplemented or amended, the "FORM F-4"); and (ii) together with Merger Sub and the Company, concurrently with the filing of the Form F-4, file with the SEC a combined Rule 13e-3 Transaction Statement on Schedule 13E-3 and Tender Offer Statement on Schedule TO under cover of Schedule TO with respect to the Offer which shall contain or incorporate by reference, among other things, a preliminary or final prospectus, as the case may be, in accordance with Rule 14d-4(b) under the Exchange Act and a related letter of transmittal (such combined Rule 13e-3 Transaction Statement on Schedule 13E-3 and Tender Offer Statement on Schedule TO under cover of Schedule TO, and the documents included or incorporated by reference therein, pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"); and (ii) as soon as practicable after the Form F-4 shall become effective cause the Offer Documents to be disseminated to holders of Company Common Stock. The Form F-4 shall comply in all material respects with the provisions of the Securities Act of 1933, as amended (the "SECURITIES ACT"), and the Offer Documents shall comply in all material respects with the provisions of the Exchange Act, assuming the accuracy of the information provided in writing for inclusion therein by the Company. Each of Parent, Merger Sub and the Company shall (i) promptly correct any information provided by it for use in the Form F-4 or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, (ii) take all steps necessary to amend or supplement the Form F-4 and the Offer Documents and (iii) cause the Form F-4 and the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the holders of Company Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Company, the Special Committee and their respective counsels shall be given the opportunity to review the Form F-4 and the Offer Documents prior to filing with the SEC. Parent shall provide the Company, the Special Committee and their respective counsels with a copy of any written comments or telephonic notification of any oral comments Parent or its counsel may receive from the SEC or its staff with respect to the Form F-4 and the Offer Documents promptly after the receipt of such comments. Parent and Merger Sub shall provide the Company, the Special Committee and their respective counsels with a reasonable opportunity to participate in all material communications with the SEC and its staff, including any material meetings and telephone conferences, relating to the Form F-4, the Offer Documents or this Agreement. If at any time after the date hereof this Agreement is terminated, Parent and Merger Sub agree that they shall amend the Offer Documents to reflect such termination.
Appears in 1 contract
Samples: Merger Agreement (Axa)
The Offer. (a) Provided that Subject to the provisions of this Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions"ii) shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Sub shall, as promptly soon as practicable, but in no event later than the fifth business day five Business Days after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub tosuch announcement, commence (within the Offer meaning of Rule 14d-2(a) of the Exchange Act) a tender offer (the "OFFER") to purchase all of the outstanding shares of Company Common Stock at a price of $10.00 per share, net to the Offer Priceseller in cash without interest (the "PRICE PER SHARE"), subject to reduction only for any applicable withholding taxes. The initial expiration date for the Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the twentieth business day following the commencement of the Offerterms and conditions set forth in this Agreement. The obligations obligation of Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) at least that number of shares of Company Common Stock equivalent to 75% of the Tender Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer Conditions(subject to reduction as described below, the "MINIMUM SHARES") being validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction of the other conditions set forth in ANNEX A hereto, any of which conditions may be waived by Parent or Merger Sub in their its sole discretion; PROVIDEDprovided, HOWEVERhowever, that Merger Sub shall not waive reduce the Minimum Condition Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. The Tender Offer Conditions are for Company agrees that no shares of Company Common Stock held by the sole benefit Company or any of Parent and its Subsidiaries will be tendered to Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise pursuant to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without .
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce decrease the number of shares of Common Stock to be purchased Price Per Share payable in the Offer, (ii) reduce decrease the number of shares of Company Common Stock sought pursuant to the Offer Price, (iii) modify below a majority of the Fully Diluted Shares of Company Common Stock or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer (including the conditions set forth in ANNEX A hereto) or impose additional conditions to the Offer, (iv) except as provided below, change the expiration date of the Offer, or (v) make otherwise amend, add or waive any other change in the terms term or condition of the Offer which is materially in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding ; provided, however, that if on any scheduled expiration date of the foregoing sentenceOffer, which shall initially be 20 Business Days after the commencement date of the Offer, all conditions to the Offer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days without the Company's prior written consent, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); provided further that if on any scheduled expiration date of the Offer all conditions to the Offer (other than the Minimum Shares) have been satisfied or waived, and the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent at least a majority of the Fully Diluted Shares of Company Common Stock, and Merger Sub does not elect to reduce the Minimum Shares and consummate the Offer, then Merger Sub shall, at the Company's request, on up to three occasions, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) extend the Offer may notif (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of Company Common Stock; provided, without however, that in no event shall the Company's prior written consent, be extended pursuant to extensions permitted under the foregoing clause (Ay) above if exceed, in the failure aggregate, 10 Business Days. Assuming the prior satisfaction or waiver of all the conditions to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements the Offer set forth in this Agreement. Notwithstanding any thing to the contrary in this AgreementANNEX A, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the terms and conditions of the Offerthis Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly accept for payment, purchase and pay for, in accordance with the terms of the Offer, all shares of Company Common Stock which are validly tendered on or prior and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer and not withdrawnOffer. Parent shall provide, or cause to be provided, to Merger Sub Sub, on a timely basis all basis, the funds necessary to accept for payment, and pay for, all purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Section 9.1, as promptly as practicable, possible but in no event later than the fifth five (5) business day days after the date public announcement of this Agreementthe execution hereof by the parties, Parent and Merger Sub shall, and Parent GP shall cause Merger Sub toAcquisition to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the "Exchange Act"), the Offer; and to cause Acquisition to use its best efforts to consummate the Offer, including, without limitation, engaging an information agent in connection therewith. Acquisition shall accept for payment issued and outstanding shares of common stock, $0.001 par value of the Company (individually a "Share" and collectively, the "Shares") together with the associated Rights which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer Pricethat all conditions to the Offer shall have been satisfied or waived by Acquisition. The initial expiration date obligation of Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the twentieth business day following condition that the commencement number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (the "Minimum Stock Condition") and the other conditions set forth in Article 7. The obligations of Merger Sub Acquisition expressly reserves the right to accept for payment waive any such condition, to increase the Per Share Amount, and to pay for make any shares other changes in the terms and conditions of Common Stock tendered shall be subject only to the Tender Offer ConditionsOffer; provided, any of which however, that Parent, GP and Acquisition agree that no change may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition made without the prior written consent of the CompanyCompany which decreases the Per Share Amount, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of shares to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (on a fully-diluted basis), which otherwise modifies or amends the conditions to the Offer or any other term of the Offer in a manner that is materially adverse to the holders of the Shares, which imposes conditions to the Offer in addition to those set forth in Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (except that Acquisition may extend the expiration date of the Offer beyond September 30, 1999 as required to comply with any rule, regulation or interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). The Tender Offer Conditions It is agreed that the conditions set forth in Article 7 are for the sole benefit of Parent and Merger Sub Acquisition and may be asserted by Parent and Merger Sub Acquisition regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, condition (including any action or inaction by Acquisition) or may be waived by Parent and Merger Sub Acquisition, in whole or in partpart at any time and from time to time, in its sole discretion. The failure by Acquisition 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 which may be asserted at any time and from time to time. 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 such conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) As soon as practicable after the date hereof, Parent, GP and Acquisition agree that Parent, GP and Acquisition shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall include an offer to purchase and form of transmittal letter (together with any amendments thereof or supplements thereto, collectively the "Offer Documents"). 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 or dissemination to the stockholders of the Company. Parent and Merger Sub expressly reserve Acquisition agree to provide the right to modify the terms of the Offer; PROVIDED HOWEVERCompany and its counsel with any comments which Parent, that without the prior written 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) modify Acquisition or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer their counsel may receive from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof of the SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws. The information provided and to the Offer. Notwithstanding the foregoingbe provided by Parent, (x) GP and Acquisition for use in the Offer may Documents shall not, without on the date filed with the SEC and on the date first published or sent or given to the Company's written consentstockholders, as the case may be, contain any untrue statement of a material fact nor omit to state any material fact required to be extended beyond stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, provided, however, that no representation or warranty is made by Parent, GP or Acquisition with respect to information supplied by the Company or any of its stockholders for inclusion in the Offer Documents. The Company agrees that information provided by the Company or any of its subsidiaries for inclusion or incorporation in the Offer Documents shall not, on the date of termination of this Agreement pursuant filed with the SEC and on the date first published or sent or given to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consentstockholders, be extended pursuant to clause (A) above if as the failure to satisfy case may be, contain any condition was caused by untrue statement of a material breach fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent, GP, Acquisition and the Company each agree promptly to correct any information provided by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth it for use in this Agreement. Notwithstanding any thing the Offer Documents if and to the contrary extent that such information shall have become false or misleading in this Agreementany material respect and Parent, Parent GP and Merger Sub Acquisition further agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend take all steps necessary to cause the Offer from time Documents as so corrected to timebe filed with the SEC and to be disseminated to holders of Shares, subject in each case as and to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerextent required by applicable federal securities laws.
Appears in 1 contract
The Offer. (a) Provided Subject only to any Laws or Orders preventing commencement of the Offer, provided that this Agreement shall not have been terminated in accordance with Article X 8 hereof and so long as none of that the events Company complies with its covenants set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)this Agreement, then Acquisition Corp. shall, as promptly as practicable, but in no event not later than the fifth business day tenth (10th) Business Day after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub tohereof (unless due to a Force Majeure Event), commence (within the Offer at meaning of Rule 14d-2 under the Offer Price. The initial expiration date for Securities Exchange Act of 1934, as amended (the Offer shall be "Exchange Act")) an offer (the twentieth business day following the commencement "Offer") to purchase all of the Offer. The obligations Common Shares at a price of Merger Sub to accept for payment and to pay for any shares of $9.60 per share in cash (such price, or such higher price per Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which Share as may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock to be purchased paid in the Offer, (ii) reduce the "Offer Price"), (iii) modify or add subject to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to condition that the holders of Common Stock. Notwithstanding Shares have validly tendered and not withdrawn prior to the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares a number of Common Stock have not been satisfied or waivedShares which, until together with the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach Common Shares beneficially owned by Parent or Merger Sub of any of their representationsAcquisition Corp., warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date represents at least 51% of the Offer, Common Shares determined on a Fully-Diluted Basis (the Regulatory Conditions (as defined in Annex A"Minimum Condition") shall not have been satisfied, but at such scheduled expiration date each of and subject to the other conditions set forth in Annex A (other than hereto. Subject to the prior satisfaction of the Minimum ConditionCondition and the prior satisfaction (or waiver in writing by Acquisition Corp.) shall then be satisfied, at the request of the Company, Merger Sub shall extend other conditions of the Offer from time set forth in Annex A, Acquisition Corp. shall use reasonable best efforts to time, subject consummate the Offer in accordance with its terms and to accept for payment and pay for all of the right of Parent, Merger Sub or the Company to terminate this Agreement Common Shares that are tendered pursuant to the terms hereofOffer as soon as it is legally permitted to do so under applicable Law. Upon The date on which all of the terms and subject Common Shares validly tendered pursuant to the conditions Offer and not withdrawn have been accepted for payment and paid for is referred to herein as the "Offer Payment Date" The obligations of Acquisition Corp. to commence the Offer, Merger Sub shall, Offer and Parent shall cause Merger Sub to, promptly purchase all shares of to accept for payment and pay for the Common Stock which are Shares validly tendered on or prior to the expiration of the Offer and not withdrawnwithdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex A hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. The Offer shall remain open until 5:00 p.m., New York City time, on the day immediately following the twentieth Business Day of the Offer (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act), unless Acquisition Corp. shall have extended the time for which the Offer is open pursuant to this Section 1.01 or as may be required by Law. Parent and Acquisition Corp. expressly reserve the right to modify the terms of the Offer, except that, without the prior written consent of the Company, neither Parent nor Acquisition Corp. shall providedecrease the Offer Price, decrease the number of Common Shares sought, increase or decrease the required percentage of, or cause waive, the Minimum Condition, change the form of or reduce the consideration in the Offer or add to or amend any of the conditions of the Offer set forth in Annex A hereto in any manner which would be adverse to the holders of the Common Shares (other than with respect to insignificant changes or amendments); provided, however, (i) if on the initially scheduled expiration date of the Offer (as it may be extended) any of the conditions to Merger Sub on a timely basis all funds necessary the Offer have not been satisfied or waived, Acquisition Corp. may, from time to accept for paymenttime, and pay forin its sole discretion, all shares of Common Stock extend the Offer (provided that Merger Sub becomes obligated to purchase no such extension pursuant to this sentence shall extend the Offer.Offer beyond the date of the termination of this Agreement pursuant to Article 8), (ii) if on or before the initially scheduled expiration date of the Offer (as it may be extended) any of the conditions to the Offer have not been satisfied or waived, the Company shall have the option to require Acquisition Corp. to extend the Offer for a period of up to the number of Business Days equal to (X) ten minus (Y) the number of Business Days of any Force Majeure Period and minus (Z) the number of Business Days of any Commencement Delay Election, if the Company is not in material breach of its covenants under this Agreement, the Company provides notice to Parent and Acquisition Corp. of its election to extend the expiration date of the Offer pursuant to clause (ii) of this Section 1.01 and the Company pays certain Expenses of Parent and Acquisition Corp. pursuant to Section 9.01 (the "Company Extension Election") and (iii) Acquisition Corp. may, in its sole discretion, provide a subsequent offering period in accordance with Rule 14d-11 under the Exchange Act. In addition, the Offer Price may be increased, and, in connection therewith, the Offer may be extended, to the extent required by applicable federal securities laws, in each case without the consent of the Company. Notwithstanding the foregoing, (A)
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X VII hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)be continuing, as promptly as practicable, but in no event later than the fifth business day ten Business Days after the date hereof, the Purchaser will commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, Parent as amended, including the rules and Merger Sub shallregulations promulgated thereunder, and Parent shall cause Merger Sub to, commence the Offer at "Exchange Act") a tender offer (the Offer Price. The initial expiration date "Offer") for the Offer shall be the twentieth business day following the commencement all shares of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Company Common Stock tendered shall be subject only at a price per share of the Company Common Stock of $14.50 net to the Tender Offer ConditionsSeller in cash (such price, or any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock to be purchased higher price paid in the Offer, (iithe "Price Per Share") reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in upon the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the and conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement, including Annex A hereto. Notwithstanding any thing The Offer shall be made by means of an offer to purchase containing the contrary terms set forth in this Agreement, Parent the Minimum Condition and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend hereto and the Offer from time to timeDocuments (as defined hereinafter). The acceptance for payment, subject to the right purchase and payment for shares of Parent, Merger Sub or the Company to terminate this Agreement Common Stock pursuant to the terms hereof. Upon Offer shall be referred to as the terms and subject to the conditions "consummation of the Offer."
(b) The obligation of the Purchaser to accept for payment, Merger Sub shall, purchase and Parent shall cause Merger Sub to, promptly purchase all shares of pay for any Company Common Stock which are validly tendered pursuant to the Offer on or prior to the expiration Expiration Date and not withdrawn prior to such Expiration Date shall be subject only to the satisfaction or waiver of the Offer Conditions, specifically including the Offer Condition that at least that number of shares of Company Common Stock representing at least a majority of the total issued and outstanding shares of Company Common Stock on a "fully diluted basis" shall have been validly tendered and not withdrawnwithdrawn prior to 5:00 p.m. New York City time, on the Expiration Date (the "Minimum Condition"). Parent "Fully diluted basis" shall providemean, or cause to be providedas of any date, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all the number of shares of Company Common Stock that Merger Sub becomes obligated to purchase are issued and outstanding, together with the shares of Company Common Stock that may be issued by the Company pursuant to warrants, options, rights or obligations outstanding at that date whether or not vested or then exercisable, including the Offerconversion of all convertible securities, if any.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are or be continuing (unless such event shall have been waived by Parent or Merger Subother than the requirements set forth in clauses (i)-(iv) of Annex A), Purchaser shall commence the Offer as promptly as practicablereasonably practicable after the date hereof, but in no event later than the fifth 5 business day days after the date initial public announcement of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, Purchaser's intention to commence the Offer at the Offer PriceOffer. The initial expiration date obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall be subject to the twentieth satisfaction of each of the conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, 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 Share payable in the Offer or which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A; and provided further that the condition in clause (iv) of Annex A may not be waived by Purchaser nor may any change be made to such condition without the consent of the Company. Purchaser shall from time to time extend the Offer beyond the scheduled expiration date, which shall initially be 20 business day days following the commencement of the Offer. The obligations , for up to 5 business days in each instance (or for such different period to which the Company shall reasonably agree) if, at the scheduled expiration of Merger Sub the Offer, any of the conditions to Purchaser's obligation to accept for payment and to pay for any shares Shares shall not be satisfied or waived. In addition, if all of Common Stock tendered shall be subject only the conditions to the Tender Offer Conditions, any of which may be are satisfied or waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce but the number of shares of Class A Common Stock validly tendered and not withdrawn, together with the shares of Class A Common Stock held by Parent and Purchaser, if any, is less than ninety percent (90%) of the then-outstanding number of shares of Class A Common Stock (assuming the conversion by Parent of all shares of Class B Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Class A Common Stock have not been satisfied or waived, until as contemplated by the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination last sentence of this Agreement pursuant to Section 10.1(a) and (y) 1.01(a)), then upon the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled applicable expiration date of the Offer, Purchaser shall provide "subsequent offering periods," as such term is defined in, and in accordance with, Rule 14d-11 under the Regulatory Conditions Exchange Act, for an aggregate period not to exceed twenty (as defined in Annex 20) business days (for all such extensions) and Purchaser shall (A) shall not have been satisfied, but at give the required notice of such scheduled subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered as of such applicable expiration date each date. Subject to the terms of the other conditions set forth in Annex A (other than the Minimum Condition) Offer, Purchaser shall then be satisfied, accept for payment and pay for all Shares at the request earliest time at which it is permitted to do so under applicable law. Purchaser shall take all necessary action to cause all shares of Class B Common Stock so accepted to be converted to shares of Class A Common Stock as promptly as practicable on the date such shares are accepted by Purchaser or on any subsequent date prior to the Effective Time if, and only if, such conversion would permit Purchaser to acquire shares of Class A Common Stock representing at least 90% of the Company, Merger Sub shall extend the Offer from time to timethen outstanding Class A Common Stock.
(b) The Per Share Amount shall, subject to the right applicable withholding of ParentTaxes (as hereinafter defined), Merger Sub or the Company to terminate this Agreement pursuant be net to the terms hereof. Upon seller in cash, upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent . Purchaser shall cause Merger Sub to, promptly purchase pay for all shares of Common Stock which are Shares validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept withdrawn promptly following the acceptance of Shares for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase payment pursuant to the Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"). If the payment equal to the Per Share Amount in cash is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such Taxes either have been paid or are not applicable.
(c) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser 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"). Parent, Purchaser and the Company 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 Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws to give effect to the Offer. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)Section 9.1, as promptly as practicable, possible but in no event later than the fifth five (5) business day days after the date public announcement of this Agreementthe execution hereof by the parties, Parent and Merger Sub shall, and Parent GP shall cause Merger Sub toAcquisition to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the "Exchange Act"), the Offer; and to cause Acquisition to use its best efforts to consummate the Offer, including, without limitation, engaging an information agent in connection therewith. Acquisition shall accept for payment issued and outstanding shares of common stock, $0.001 par value of the Company (individually a "Share" and collectively, the "Shares") together with the associated Rights which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer Pricethat all conditions to the Offer shall have been satisfied or waived by Acquisition. The initial expiration date obligation of Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the twentieth business day following condition that the commencement number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, GP, Acquisition or any of their affiliates, constitutes at least a majority of the then outstanding Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (the "Minimum Stock Condition") and the other conditions set forth in Article 7. The obligations of Merger Sub Acquisition expressly reserves the right to accept for payment waive any such condition, to increase the Per Share Amount, and to pay for make any shares other changes in the terms and conditions of Common Stock tendered shall be subject only to the Tender Offer ConditionsOffer; provided, any of which however, that Parent, GP and Acquisition agree that no change may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition made without the prior written consent of the CompanyCompany which decreases the Per Share Amount, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of shares to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (on a fully-diluted basis), which otherwise modifies or amends the conditions to the Offer or any other term of the Offer in a manner that is materially adverse to the holders of the Shares, which 7 imposes conditions to the Offer in addition to those set forth in Article 7 or which extends the expiration date of the Offer beyond September 30, 1999 (except that Acquisition may extend the expiration date of the Offer beyond September 30, 1999 as required to comply with any rule, regulation or interpretation of the Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). The Tender Offer Conditions It is agreed that the conditions set forth in Article 7 are for the sole benefit of Parent and Merger Sub Acquisition and may be asserted by Parent and Merger Sub Acquisition regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, condition (including any action or inaction by Acquisition) or may be waived by Parent and Merger Sub Acquisition, in whole or in partpart at any time and from time to time, in its sole discretion. The failure by Acquisition 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 which may be asserted at any time and from time to time. 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 such conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) As soon as practicable after the date hereof, Parent, GP and Acquisition agree that Parent, GP and Acquisition shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall include an offer to purchase and form of transmittal letter (together with any amendments thereof or supplements thereto, collectively the "Offer Documents"). 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 or dissemination to the stockholders of the Company. Parent and Merger Sub expressly reserve Acquisition agree to provide the right to modify the terms of the Offer; PROVIDED HOWEVERCompany and its counsel with any comments which Parent, that without the prior written 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) modify Acquisition or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer their counsel may receive from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof of the SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws. The information provided and to the Offer. Notwithstanding the foregoingbe provided by Parent, (x) GP and Acquisition for use in the Offer may Documents shall not, without on the date filed with the SEC and on the date first published or sent or given to the Company's written consentstockholders, as the case may be, contain any untrue statement of a material fact nor omit to state any material fact required to be extended beyond stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, provided, however, that no representation or warranty is made by Parent, GP or Acquisition with respect to information supplied by the Company or any of its stockholders for inclusion in the Offer Documents. The Company agrees that information provided by the Company or any of its subsidiaries for inclusion or incorporation in the Offer Documents shall not, on the date of termination of this Agreement pursuant filed with the SEC and on the date first published or sent or given to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consentstockholders, be extended pursuant to clause (A) above if as the failure to satisfy case may be, contain any condition was caused by untrue statement of a material breach fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent, GP, Acquisition and the Company each agree promptly to correct any information provided by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth it for use in this Agreement. Notwithstanding any thing the Offer Documents if and to the contrary extent that such information shall have become false or misleading in this Agreementany material respect and Parent, Parent GP and Merger Sub Acquisition further agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend take all steps necessary to cause the Offer from time Documents as so corrected to timebe filed with the SEC and to be disseminated to holders of Shares, subject in each case as and to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerextent required by applicable federal securities laws.
Appears in 1 contract
The Offer. (a) Provided that Commencement of the Offer. Unless this Agreement shall not have been terminated in accordance with Article X hereof ARTICLE VIII, and so long as none of subject to the events Company having complied with its obligations set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger SubSection 1.02(b), as promptly as practicable, reasonably practicable after the date of this Agreement (but in no event later more than the fifth business day ten Business Days after the date of this Agreement), Parent and Merger Sub shall, shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), such date hereinafter referred to as the “Offer at Commencement Date”) the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement Offer.
(b) Terms and Conditions of the Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) the Minimum Tender Condition; and (ii) the satisfaction, or waiver (to the extent permitted by Law) by Parent or Merger Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Tender Condition, the “Offer Conditions”). Subject to the prior satisfaction of the Minimum Tender Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment and to pay for any all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Time; provided, that with respect to shares of Company Common Stock tendered shall be subject only pursuant to the Tender Offer Conditionsguaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that 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. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not waive validly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions set forth in this Agreement.
(c) Offer to Purchase; Adjustment of Offer Price; Waiver of Conditions. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Minimum Tender Condition without and the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in partConditions. Parent and Merger Sub expressly reserve the right right, to modify the extent permitted by Law, to waive, in whole or in part, any Offer Condition (other than the Minimum Tender Condition), to increase the Offer Price, or to make any other changes in the terms and conditions of the Offer not inconsistent with the terms of the Offerthis Agreement; PROVIDED HOWEVERprovided, however, that without the prior written consent of unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not not: (i) reduce the maximum number of shares of Company Common Stock sought to be purchased in the Offer, ; (ii) reduce the Offer Price, ; (iii) modify amend, modify, or add waive the Minimum Tender Condition; (iv) impose conditions or requirements to the Tender Offer Conditionsin addition to those set forth in Annex I; (v) amend or modify any Offer Condition in a manner that adversely affects, or that would reasonably be expected to have an adverse effect on, any holders of shares of Company Common Stock, or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer, the Merger, or the other Transactions; (ivvi) except as otherwise provided in Section 1.01(d), 1.01(e), or 1.01(g), terminate the Offer or accelerate, extend or otherwise change the Expiration Time; (vii) change the form of consideration payable in the Offer Offer; or (vviii) make provide any other change “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act.
(d) Expiration of the Offer. The Offer shall expire at one minute after 11:59 p.m., New York time, on the date that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the terms Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer which is materially adverse to (the holders of Common Stock. Notwithstanding “Initial Expiration Time”) or, in the foregoing sentence, Merger Sub may, without event the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not Initial Expiration Time has been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure and in accordance with to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent the date and Merger Sub agree that if immediately prior time to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend which the Offer from has been so extended (the Initial Expiration Time, or such later date and time to time, subject to which the right of Parent, Merger Sub or the Company to terminate this Agreement Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer“Expiration Time”).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event be continuing, Purchaser shall, and Parent shall have been waived by Parent or Merger Sub)cause Purchaser to, commence the Offer as promptly as practicable, reasonably practicable after the date hereof (but in no event later than the fifth ten (10) business day days after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price). The initial expiration date for the Offer shall be the twentieth business day following the commencement obligation of the Offer. The obligations of Merger Sub Purchaser to accept for payment and Securities tendered pursuant to pay for any shares of Common Stock tendered the Offer shall be subject only to (i) the Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, condition (the "Minimum Condition") that Merger Sub there shall have been validly tendered and not waive withdrawn prior to the Minimum Condition without the prior written consent expiration of the Company. The Tender Offer Conditions are at least the number of shares of Company Common Stock, shares of Company Series A Preferred Stock and Warrants (determined as if shares of Company Series A Preferred Stock and Warrants have been converted into or exercised for the sole benefit shares of Parent Company Common Stock) that, when added to Securities already owned by Parent, Purchaser and Merger Sub and may be asserted by Parent and Merger Sub regardless their subsidiaries, shall constitute two-thirds of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly then outstanding shares of Company Common Stock on a Fully Diluted Basis and (ii) the satisfaction or waiver of each of the other conditions set forth herein, may be waived by Parent and Merger Sub in whole or in partAnnex A hereto. Parent and Merger Sub Purchaser expressly reserve reserves the right to modify waive any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDED HOWEVERprovided, however, that no change may be made which decreases the Per Share Amount or which reduces the maximum number of Securities to be purchased in the Offer or which modifies in any manner adverse to the holders of Securities or adds conditions to the Offer in addition to those set forth in Annex A hereto and that Purchaser shall not, without the prior written consent of the Company, Merger Sub shall not waive or change the Minimum Condition, change the scheduled expiration date of the Offer (i) reduce the number of shares of Common Stock to be purchased except as provided in the Offer, (iinext sentence) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of Common StockOffer. Notwithstanding the foregoing sentenceforegoing, Merger Sub Purchaser may, without the consent of the Company, : (Ai) extend the Offer in increments of no more than five (5) business days each beyond the scheduled expiration date, which shall initially be 20 business days following the commencement of the Offer, if if, at the then scheduled expiration date of the Offer Offer, any of the conditions to Merger SubPurchaser's obligations obligation to purchase accept Securities for payment shall not be satisfied or waived, provided that the shares Purchaser may not extend the Offer pursuant to this clause (i) for more than 10 business days in total if all of Common Stock the conditions set forth in Annex A hereto other than the Financing Condition have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (Cii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC or the staff thereof applicable to the Offer. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.of
Appears in 1 contract
Samples: Merger Agreement (Mohawk Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X VI hereof and so long as none of the events conditions set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub)be existing, as promptly as practicable, but in no event later than the fifth business day after within six Business Days of the date hereof, Acquisition will, and Parent will cause Acquisition to, commence a tender offer (the "Offer") for all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "Company Common Stock") at a price per share of the Company Common Stock of U.S. $19.10 net to the seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, Parent and Merger Sub shallincluding Annex A hereto.
(b) Provided that this Agreement shall not have been terminated in accordance with Article VI hereof, the obligation of Acquisition to, and Parent shall to cause Merger Sub Acquisition to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment payment, purchase and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the Tender satisfaction or waiver of the Offer Conditions, any Conditions including the condition that at least that number of which may be waived by Parent or Merger Sub in their sole discretionshares of Company Common Stock equivalent to a majority of the total issued and outstanding shares of Company Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"); PROVIDED, HOWEVER, provided that Merger Sub shall not waive for the purpose of determining whether the Minimum Condition has been met, any shares of Company Common Stock that have been acquired by Parent pursuant to the option granted to Parent in the Shareholders Agreement shall be deemed to have been validly tendered and not withdrawn prior to the expiration of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Acquisition pursuant to the Offer. Acquisition expressly reserves the right, in its sole discretion, to waive any of the Offer Conditions (other than the Minimum Condition), to increase the consideration payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that Acquisition will not, and Parent will cause Acquisition not to, without the prior written consent of the Company. The Tender Offer Conditions are for Company (such consent to be authorized by the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not Company Board): (i) reduce waive the number of shares of Common Stock to be purchased in the OfferMinimum Condition, (ii) reduce decrease the Offer Price, (iii) modify amount or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or Offer, (iii) decrease the number of shares of Company Common Stock sought in the Offer, (iv) impose additional conditions to the Offer, (v) make change any Offer Condition, (vi) amend any other change in the terms term of the Offer which is in any manner materially adverse to the holders of Company Common StockStock (other than Parent or Acquisition) or (vii) except as provided below, extend the Offer. Notwithstanding Subject to the foregoing sentenceterms and conditions hereof, Merger Sub maythe Offer shall remain open until midnight, New York City time, on the date that is twenty Business Days after the Offer is commenced (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")); provided, however, that without the consent of the CompanyCompany Board, Acquisition may (Ax) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock Offer Conditions shall not have not been satisfied or waived, for one or more periods (each such period shall not exceed ten Business Days) until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such time as such conditions will be satisfiedare satisfied or waived, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (Cy) extend the Offer for any such period as may be required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission ("SEC") or the staff thereof applicable to the Offer. Notwithstanding the foregoing, or (xz) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to for an aggregate period of not more than ten Business Days beyond the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.latest
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") Company shall have occurred and are continuing complied with its applicable obligations under Section 1.2 (unless such event shall have been waived by Parent or Merger Subother than clause (e)), as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and Merger Sub shall, and Parent shall use its reasonable best efforts to cause Merger Sub to, to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer at the Offer PricePrice no later than March 24, 2008 (and in any event as promptly as practicable after the date hereof). The initial expiration date for For the avoidance of doubt, Parent may consummate the Offer shall be the twentieth business day following the commencement of the Offer. through Merger Sub, its indirect wholly-owned Subsidiary.
(b) The obligations obligation of Merger Sub (and Parent’s obligation to cause Merger Sub) to accept for payment exchange, and to pay for exchange the Offer Price for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) the Tender condition that there shall be validly tendered in accordance with the terms of the Offer Conditions(other than shares of Company Common Stock tendered by guaranteed delivery where actual delivery has not occurred), any prior to the scheduled expiration of which the Offer (as it may be waived extended hereunder) and not withdrawn, a number of shares of Company Common Stock that, together with any shares of Company Common Stock then directly or indirectly owned by Parent or Merger Sub Sub, represents more than 9,600,000 shares of Company Common Stock (the “Minimum Condition”) and (ii) the other conditions set forth in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive Annex B (the Minimum Condition without and such other conditions collectively referred to herein as the prior written consent of the Company“Offer Conditions”). The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions orParent, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent US Corp. and Merger Sub expressly reserve the right in their sole and absolute discretion to waive any of the Offer Conditions and to modify the terms of the Offer; PROVIDED HOWEVERprovided, that without unless previously approved in writing by the prior written consent Company in the Company’s sole and absolute discretion, (i) the Minimum Condition may not be amended nor may it be waived if such waiver would result in Merger Sub purchasing less than a majority of the outstanding shares of Company Common Stock (for purposes of this clause (i) treating each share of the Company’s Series A 7% Convertible Preferred Stock, Merger Sub shall not par value $0.10 per share (i“Company Convertible Preferred Stock” and, together with the Company Common Stock, the “Company Stock”), as having been converted into a share of Company Common Stock pursuant to the Certificate of Designations), (ii) reduce no change may be made that changes the form of consideration to be paid pursuant to the Offer or reduces the ratio of cash to Parent Common Stock, decreases the Offer Price or the number of shares of Company Common Stock to be purchased sought in the Offer, (ii) reduce the Offer Price, (iii) modify amends or add adds to the Tender Offer Conditions, (iv) change the form of consideration payable in or otherwise modifies the Offer or (v) make in any other change in the terms of the Offer which is materially manner adverse to the holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent stockholders of the Company, and (Aiii) extend except as set forth in Section 1.1(c), the Offer, if at Offer may not be extended nor may any change be made to the Offer that would require an extension of or delay in the then scheduled current expiration date of the Offer any Offer. Holders of shares of Company Common Stock will not be able to tender such shares by guaranteed delivery unless Merger Sub otherwise elects in its sole and absolute discretion to permit guaranteed delivery. For purposes of this Agreement, including for purposes of determining whether the conditions to Merger Sub's obligations to purchase Minimum Condition has been met, the shares of Company Common Stock issuable upon conversion of the Company Convertible Preferred Stock shall be deemed to have been validly tendered in the Offer and not withdrawn if the Tender Documents referred to in Section 2.1 of each of the Stockholder Agreements are delivered to the depositary for the Offer in accordance with such Section 2.1 and not withdrawn.
(c) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 10:00 a.m., New York City time, on the twenty-first (21st) business day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Offer Period”). Subject to the provisions of Section 1.5, and subject to the parties’ respective termination rights under Section 9 (if applicable), (i) if, at the scheduled or extended expiration date of the Offer, any Offer Condition has not been satisfied in Parent’s reasonable discretion or waivedwaived (if such waiver is permitted hereunder), until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) shall extend the Offer from time until the earlier to time up to a maximum occur of an aggregate (x) the satisfaction or waiver of 30 days beyond the first day all of the Tender Offer Conditions have been metand (y) the End Date, and/or and (Cii) Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or its staff or the staff thereof Nasdaq Market (including any successor exchange, “Nasdaq”) applicable to the OfferOffer or any period required by applicable Law. Notwithstanding Following the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions Merger Sub may elect to provide one or more subsequent offering periods (as defined each, a “Subsequent Offering Period”) in Annex A) shall not have been satisfied, but at such scheduled expiration date each accordance with Rule 14d-11 of the Exchange Act and in compliance with all other conditions set forth in Annex A (other than provisions of applicable Law. Subject to the Minimum Condition) shall then be satisfiedforegoing, at including the request requirements of Rule 14d-11 of the CompanyExchange Act, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, as promptly purchase all shares of Common Stock which are validly tendered on or prior to the as practicable following expiration of the Offer accept for payment and pay for all shares of Company Common Stock (A) validly tendered and not withdrawnwithdrawn pursuant to the Offer and/or (B) validly tendered in any such Subsequent Offering Period. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash and shares of Parent Common Stock, subject to reduction for any applicable withholding Taxes.
(d) Subject to the foregoing and applicable Law and upon the terms of and subject to the conditions of the Offer, Merger Sub shall accept for payment, as promptly as permitted under applicable securities Law, and pay for (after giving effect to any required withholding Tax), as promptly as practicable after the date on which Merger Sub first accepts shares of Company Common Stock for payment pursuant to the Offer (the date and time of such first acceptance, regardless of whether Parent and Merger Sub elect to provide for one or more Subsequent Offering Periods pursuant to Rule 14d-11 of the Exchange Act, the “Acceptance Date”), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(e) No fraction of a share of Parent Common Stock shall be issued in connection with the Offer, no dividends or other distributions with respect to Parent Common Stock shall be payable on or with respect to any such fractional share interest and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu thereof, each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would have been received by such stockholder) shall, upon surrender of his or her Certificate or Certificates or Book-Entry Shares (each as defined below), be entitled to receive an amount of cash (without interest) rounded to the nearest whole cent determined by multiplying (i) the closing price of a share of Parent Common Stock as reported on the Nasdaq on the Acceptance Date by (ii) the fractional share interest to which such holder would otherwise be entitled. The parties acknowledge that payment of the cash consideration 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 shares of Company Common Stock 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 Merger Sub shall file with the SEC (i) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall contain the Preliminary Prospectus, an offer to exchange, a form of related letter of transmittal and summary advertisement in respect of the Offer (collectively, together with any amendments or supplements thereto, the Registration Statement and such other ancillary documents as may be required, the “Offer Documents”) and (ii) a registration statement on Form F-4 (or Form S-4) to register the offer and sale of Parent Common Stock pursuant to the Offer and the Merger (the “Registration Statement”). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) of the Exchange Act (the “Preliminary Prospectus”). Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to the Company’s stockholders as and to the extent required by applicable federal securities Laws. The Company shall providepromptly furnish to Parent and Merger Sub all information concerning the Company, its directors, officers and affiliates as may be required by applicable securities Law or reasonably requested by Parent or Merger Sub for inclusion in the Schedule TO, the Registration Statement or the other Offer Documents. Parent and Merger Sub shall use their reasonable best efforts to cause the Schedule TO, the Registration Statement and the other Offer Documents to comply in all material respects with applicable securities laws and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after it is filed with the SEC and to keep the Registration Statement effective as long as necessary to complete the Offer and the Merger. Following the time the Registration Statement is declared effective, Parent shall file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO, the Registration Statement and the other Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Sub agree to take all steps necessary to cause the Schedule TO and the Registration Statement as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the Company’s stockholders, in each case, as and to the extent required by applicable federal securities Law. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO, the Registration Statement and the other Offer Documents each time before any such document is filed with the SEC or disseminated to the Company’s 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 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, the Registration Statement or the other Offer Documents promptly after receipt of such comments or other communications, and (ii) a reasonable opportunity to provide comments on that response (to which reasonable and good faith consideration shall be given).
(h) Parent and/or US Corp. shall provide or cause to be provided, provided to Merger Sub on a timely basis all the funds and shares of Parent Common Stock necessary to accept for payment, and pay for, all any shares of Company Common Stock that Merger 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 share of Company Common Stock is accepted for payment and paid for pursuant to the Offer, the outstanding shares of Company Stock are changed (or a record date for such change occurs) into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall be appropriately and proportionately adjusted, taking into account the record and payment or effective dates, as the case may be, for such transaction.
(j) If, between the date hereof and the date on which any share of Company Common Stock is accepted for payment and paid for pursuant to the Offer, the outstanding shares of Parent Common Stock are changed (or a record date for such change occurs) into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall be appropriately and proportionately adjusted, taking into account the record and payment or effective dates, as the case may be, for such transaction.
(k) Subject to Section 1.5, unless this Agreement is terminated pursuant to Section 9, Merger Sub shall not 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, Merger Sub shall promptly (and in any event within twenty-four (24) hours) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the purchase of shares of Company Common Stock in the Offer, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered shares of Company Stock to the tendering stockholders.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the events set forth in Annex A hereto (the "Tender Offer Conditions") ANNEX I shall have occurred and or are continuing (unless such event shall have been waived by Parent or Merger Subother than the requirements set forth in clauses "(i)," "(ii)," "(iii)(e)" and "(iii)(f)" of ANNEX I), as promptly as practicable, but in no event later than the fifth business day practicable after the date of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence Agreement (but in no event more than five business days after the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement public announcement of the execution of this Agreement), Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer. .
(b) The obligations obligation of Merger Acquisition Sub to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) the Tender Offer Conditionscondition that there shall be validly tendered a number of shares of Company Common Stock which, together with any outstanding shares of Company Common Stock with respect to which may be waived by Parent or Merger Sub in their has sole discretion; PROVIDEDbeneficial ownership, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent represents at least a majority of the Company. The Tender Offer Conditions are for Fully Diluted Number of Company Shares (the sole benefit of Parent "MINIMUM CONDITION") and Merger Sub and may be asserted by Parent and Merger Sub regardless of (ii) the circumstances giving rise to any such Tender Offer Conditions or, except as expressly other conditions set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Annex I. Acquisition Sub expressly reserve reserves the right to modify increase the Per Share Amount or to make any other changes in the terms and conditions of the OfferOffer not inconsistent with the provisions of this Agreement; PROVIDED HOWEVERprovided, however, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the Minimum Condition may not be amended or waived; and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per share of Company Common Stock or the number of shares of Company Common Stock to be purchased sought in the Offer, (ii) reduce imposes conditions to the Offer Pricein addition to those set forth in Annex I, (iii) modify or add to extends the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms expiration date of the Offer which is materially adverse beyond the initial expiration date of the Offer (except as provided in (c), below). Notwithstanding anything to the holders contrary contained in this Agreement, the Offer may not be withdrawn prior to the expiration date (or any rescheduled expiration date) of Common Stockthe Offer.
(c) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at any then-scheduled expiration date, the conditions to the Offer have not been satisfied or waived (other than conditions which are not capable of being satisfied), Acquisition Sub shall be entitled to extend the Offer for such amount of time as Acquisition Sub reasonably believes is necessary to cause such Offer conditions to be satisfied; provided, however, that Acquisition Sub shall not be entitled to extend the Offer to any date occurring after 60 business days following the commencement of the Offer without the prior written consent of the Company. Notwithstanding anything to the foregoing sentence, Merger contrary contained in this Agreement: (i) Acquisition Sub may, without the consent of the Company, Company or any other Person (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (C) extend the Offer for any period required by any rulerule or regulation of the SEC applicable to the Offer and (B) if more than a majority of the Fully Diluted Number of Company Shares but less than 90% of the Fully Diluted Number of Company Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, regulationextend the Offer for an additional period of not more than 20 business days, interpretation provided, however, that Acquisition Sub shall not be entitled to extend the Offer pursuant to this clause (B) to any date occurring after 60 business days following the commencement of the Offer without the prior written consent of the Company; and (ii) Acquisition Sub may, without the consent of the Company or position any other Person, elect to provide for a subsequent offering period (and one or more extensions thereof) pursuant to, and in accordance with the terms of, Rule 14d-11 under the Exchange Act.
(d) As promptly as practicable on the date of commencement of the Offer, Parent and Acquisition Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer that will contain or incorporate by reference the offer to purchase and form of the related letter of transmittal and (ii) cause the offer to purchase and related documents to be disseminated to holders of shares of Company Common Stock. Parent and Acquisition Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the "OFFER DOCUMENTS") filed by either Parent or Acquisition Sub with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable laws (except that Parent and Acquisition Sub shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Acquisition Sub and the Company agrees to respond promptly to any comments of the SEC or its staff and to promptly correct any information provided by it for use in the staff thereof applicable Offer Documents if and to the Offer. Notwithstanding the foregoingextent that such information shall have become false or misleading in any material respect, (x) and Parent further agrees to take all steps necessary to cause the Offer may notDocuments as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of shares of Company Common Stock, without in each case as and to the extent required by applicable federal securities laws. The Company shall promptly furnish to Parent and Acquisition Sub all information concerning the Acquired Corporations and the Company's written consent, stockholders (i) that may be extended beyond required in connection with any action contemplated by this Section 1.1(d) within two business days after the date public announcement of termination the execution of this Agreement pursuant to Section 10.1(a) and (yii) reasonably requested in connection with any action contemplated by this Section 1.1(d) within two business days after such request. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or Documents prior to the expiration of filing thereof with the SEC. Parent and Acquisition Sub agree to provide the Company and its counsel with any comments Parent, Acquisition Sub or their counsel may receive from the SEC or its staff with respect to the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares Documents promptly after receipt of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offersuch comments.
Appears in 1 contract
The Offer. Subject to Section 4:
(a) Provided that this Agreement shall not have been terminated in accordance with Article X Section 4 hereof and so long as provided that none of the events set forth in Annex A hereto (the "Tender Offer Conditions") shall have Conditions has occurred or is continuing and are continuing (unless in the case of any such event shall have been occurrence or continuation, Acquisition Sub has not otherwise waived by Parent the occurrence or Merger Subcontinuation of such event(s), as promptly as practicable, but in no event later than the fifth business day after the date of this AgreementAgreement and in any event on or before the date that is five (5) business days after the date hereof, Parent and Merger Acquisition Sub shall, and Parent shall cause Merger Sub to, commence the Offer at within the meaning of the applicable rules and regulations of the Taiwan Financial Supervisory Commission (the “FSC”). The obligations of Acquisition Sub to commence the Offer Priceand accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) are subject to the satisfaction or waiver of each of the conditions set forth in Schedule C (such conditions, the “Offer Conditions”). The initial expiration date for of the Offer shall be the twentieth 32nd day (which 32 day period shall also encompass 20 business day days) following the commencement of the OfferOffer (such date, the “Initial Expiration Date”, and such date and any subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, each an “Expiration Date”). The obligations of Merger Sub to accept for payment and to pay In order for any stockholder of the Company to validly tender all or a portion of such stockholder’s Company Common Stock into the Offer such stockholder shall, concurrent with such tender, provide any member of the executive management of the Company (“Company Management”) with a proxy (“Tendered Proxies”) to (x) allow such tendered shares of Company Common Stock to be counted as present at the Company Stockholder Meeting or any annual or extraordinary general meeting in which the Company Stockholder Approval is sought, and (y) vote, or grant a consent or approval in respect of, such tendered shall be subject only to shares of Company Common Stock, in favor of granting the Tender Offer ConditionsCompany Stockholder Approval and, if applicable, against any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Takeover Proposal. Acquisition Sub shall not withdraw or rescind the Offer unless such withdrawal or rescission is permitted under this Agreement and the Securities and Exchange Law of Taiwan and the regulations promulgated thereunder.
(b) Subject to applicable Law, Acquisition Sub expressly reserves the right to waive any Offer Condition or amend or modify the Minimum Condition terms of the Offer by concurrent written notice to the Company and to the Stockholders, provided that (x) no such proposed amendment or modification shall be effective for any purpose if it could reasonably be expected to impose additional obligations or liability on the Stockholders with respect to the Offer or the consummation of the Offer other than as contemplated hereby,(y) any proposed amendment or modification that would require the amendment of any term of this agreement shall not be effective without such amendment having been made pursuant to Section 6, and (z) without the prior written consent of the Company. The Tender Offer Conditions are for Company and the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions orStockholders, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Acquisition Sub shall not (i) reduce the number of shares of Company Common Stock subject to be purchased in the Offer, (ii) reduce the Offer Priceconsideration payable in the Offer, (iii) modify waive the Minimum Condition (as defined in Schedule C) or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer. Subject to Section 4, (i) Acquisition Sub may extend the Offer for a period of up to 30 days only if and to the extent such extension is approved by the FSC, and (ii) Acquisition Sub may make such changes to the Offer as are required in order to comply with Regulation 14E of the U.S. Securities Exchange Act of 1934, as amended. The parties acknowledge and agree that all Subject Shares tendered to Acquisition Sub in the Offer pursuant to the terms hereof shall be counted for purposes of determining whether or not the Minimum Condition has been satisfied.
(vc) make On or prior to the date of commencement of the Offer, Acquisition Sub shall file with the FSC and submit to the Market Observation Post System of Taiwan (“MOPS”) a Tender Offer Prospectus in due and proper form that complies in all material respects with the applicable form relating to the Offer (together with any other change supplements, amendments and exhibits thereto, and all deliveries, mailings and notices required by applicable Law, the “Offer Documents”). Acquisition Sub shall promptly correct any information in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Acquisition Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be timely filed with the FSC and published in the MOPS and to be timely disseminated to holders of Shares, in each case as and to the extent required by applicable FSC, TSE and MOPS rules and regulations. Acquisition Sub shall give the Company, the Stockholders and their respective counsel a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements to the Offer Documents prior to their being filed with the FSC and published in the MOPS and disseminated to holders of Shares. Acquisition Sub further hereby agrees to promptly provide the Company, the Stockholders and their respective counsel in writing with any comments Acquisition Sub or its counsel may receive from the FSC or the MOPS with respect to the Offer Documents promptly after the receipt of such comments, and shall promptly consult with and provide the Company, the Stockholders and their respective counsel a reasonable opportunity to review and comment on the response of Acquisition Sub to such comments prior to responding.
(d) Subject solely to the satisfaction or waiver by Acquisition Sub of the Offer Conditions in accordance with Section 2(b) hereof, Acquisition Sub shall promptly and in event within seven (7) business days after the then scheduled Expiration Date if at that time all of the Offer Conditions are satisfied (or waived by Acquisition Sub), accept for payment and pay for the shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer for the Offer Price. If Acquisition Sub is ordered by the FSC to amend the terms of the Offer which is materially adverse according to the holders of Common Stock. Notwithstanding the foregoing sentenceapplicable Law, Merger Acquisition Sub mayshall promptly do so, without the consent of the Company, (A) extend the Offer, if at the then scheduled expiration date of and shall re-submit the Offer any of Documents and make a public announcement regarding such amendment, and the conditions Expiration Date shall be re-started to Merger Sub's obligations to purchase count from the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger date Acquisition Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend re-submits the Offer from time to time up to Documents and makes such a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been metpublic announcement.
(e) If, and/or (C) 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. Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond between the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy first time at which Acquisition Sub accepts for payment and makes payment for any condition was caused by a material breach by Parent or Merger Sub shares of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub shall extend the Offer from time to time, subject to the right of Parent, Merger Sub or the Company to terminate this Agreement Common Stock tendered pursuant to the terms hereof. Upon Offer (the terms and subject to “Acceptance Time”), the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly purchase all outstanding shares of Company Common Stock which are validly tendered on changed into a different number or prior to the expiration class of shares by reason of any share issuance, share split, division or subdivision of shares, share dividend, reverse share split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer and not withdrawn. Parent Price shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offeradjusted accordingly.
Appears in 1 contract
Samples: Tender Agreement (Exar Corp)
