The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject to the conditions of this Agreement set forth in Section 6.01 as promptly as practicable, but in no event less than ten (10) business days after the public announcement of the execution of this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. (b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance. (c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel. (d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Acquisition Agreement (Home Products International Inc)
The Offer. (ai) Provided Subject to the terms and conditions of this Agreement (and provided that this Agreement shall not have been terminated in accordance with Section 7.01 Article VIII), Purchaser shall, and subject to Parent shall cause Purchaser to, as promptly as practicable after the conditions date of this Agreement set forth in Section 6.01 as promptly as practicable, (but in no event less later than ten (10) business days after the public announcement of the execution of this AgreementOctober 31, Acquirer shall 2022), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer () the “Offer”) Offer to purchase for cash any (subject to the Minimum Tender Condition) and all of the issued and outstanding Shares at a price of $2.25 per Sharethe Offer Price; provided that if, net at the time Purchaser intends to the seller in cash (such price, or such other price per Share as may be paid in commence the Offer, being referred the Company is not prepared to herein file with the U.S. Securities and Exchange Commission (the “SEC”) and to disseminate to holders of Shares the Schedule 14D-9, Purchaser may, but until such time as the “Offer Price”)Company is so prepared, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to be obligated to, commence the Offer. Acquirer shall, on the terms and subject The obligation of Purchaser to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and to pay for any Shares validly tendered as soon as it is legally permitted and not validly withdrawn pursuant to do so under applicable law.
(b) The the Offer shall be made by means subject only to the satisfaction or waiver (to the extent permitted hereunder) of an offer to purchase those conditions set forth in Annex I (the “Offer to PurchaseConditions”). Unless extended in accordance with Section 1.1(a)(ii), the Offer will expire at one (1) containing minute after 11:59 p.m. Eastern Time on the terms twentieth (20th) Business Day (calculated as set forth in this Agreement Rule 14d-1(g)(3) under the Exchange Act) following (and including the conditions set forth day of) the commencement of the Offer (the “Initial Expiration Date”), or, if the Offer has been extended in accordance with Section 6.01 hereto 1.1(a)(ii), at the time and providing for an initial expiration 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 Section 1.1(a)(ii), the “Expiration Date”). Purchaser expressly reserves the right at any time or from time to time, which term shall also indicate in its sole discretion, to waive any later date to which Offer Condition or modify or amend the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement terms of the Offer. Acquirer shall not decrease , in whole or in part, including the Offer Price or decrease the number of Shares sought in the OfferPrice, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by Purchaser may not (A) decrease the Special Committee. Acquirer shall (which will not require Closing Amount or amend the consent terms of the CompanyCVRs or the CVR Agreement, (B) change the form of the consideration payable in the Offer, (C) decrease the maximum number of Shares sought pursuant to the Offer, (D) amend or waive the Minimum Tender Condition or the condition set forth in clause 2(e) of Annex I, (E) add to the conditions set forth on Annex I, (F) modify the conditions set forth on Annex I in a manner adverse to the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or prevent, delay or impair the ability of Parent or Purchaser to consummate the Offer, the Merger or the other transactions contemplated by this Agreement, (G) extend the Expiration Date of the Offer except as required or expressly permitted by Section 1.1(a)(ii) or provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act or (H) make any other change in the terms or conditions of the Offer that is adverse to the holders of Shares.
(ii) Subject to the terms and conditions of this Agreement and to the satisfaction or waiver (to the extent permitted hereunder) by Purchaser of the Offer Conditions as of any scheduled Expiration Date, Purchaser shall accept for purchase any and all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after such scheduled Expiration Date, which shall be the next Business Day after the expiration of the Offer absent extenuating circumstances and, in any event, no more than three (3) Business Days after the expiration of the Offer (the date and time of acceptance for payment, the “Acceptance Time”). The Purchaser shall promptly (and in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)) after the Acceptance Time pay, or cause the Paying Agent to pay, for all Shares validly tendered and not validly withdrawn pursuant to the Offer. Purchaser shall not permit holders of Shares to tender Shares pursuant to the Offer pursuant to guaranteed delivery procedures that have not been “received” (as defined by Section 251(h)(6) of the DGCL) by Purchaser’s transfer agent. Purchaser shall (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one (1) or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number periods of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period time of up to ten (10) business days in accordance with Rule 14d-11 Business Days per extension if at any scheduled Expiration Date any Offer Condition (other than the Minimum Tender Condition) is not satisfied and has not been waived (to the extent permitted hereunder) and (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Exchange Act following SEC, the Share Acceptancestaff thereof, or The Nasdaq Global Select Market (“Nasdaq”) applicable to the Offer; provided that Purchaser is not required to extend the Offer beyond the Outside Date. In addition, if at the otherwise scheduled Expiration Date, each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Purchaser may elect to (and if so requested by the Company, Purchaser shall) extend the Offer for one (1) or more consecutive increments of such duration as requested by the Company (or if not so requested by the Company, as determined by Purchaser), but not more than ten (10) Business Days each (or for such longer period as may be agreed to by Parent and the Company); provided that the Company shall not request Purchaser to, and Purchaser shall not be required to, extend the Offer pursuant to this sentence on more than three (3) occasions in consecutive periods of ten (10) Business Days each (or such longer or shorter period as the Company and Purchaser may agree in writing); provided, further, that Purchaser shall not without the prior written consent of the Company, and shall not be required to, extend the Offer beyond the Outside Date. The Company shall register (and shall instruct its transfer agent to register) the transfer of the Shares accepted for payment by Purchaser effective immediately after the Acceptance Time.
(cb) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Purchaser shall file or cause to be filed with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together collectively with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference ) with respect to the Offer that includes as exhibits the offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (the “Schedule TO, and other ancillary documents and instruments pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisement, together will be made (collectively with any supplements or amendments and supplements thereto, collectively the “Offer Documents”)) and shall disseminate the Offer Documents to holders of Shares, in each case, as and to the extent required by applicable federal securities Laws. The Company shall furnish promptly to Parent and Purchaser all information reasonably requested by Xxxxxx and Purchaser concerning the Company and required by applicable federal securities Laws to be set forth in the Offer Documents. Except from and after a Change of Board Recommendation, Parent and Purchaser shall (i) afford the Company a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC, (ii) promptly provide the Company and its counsel with a copy of any written comments (and a description of any oral comments) received by Parent, Purchaser or their counsel from the SEC or its staff with respect to the Offer Documents, (iii) consult with the Company regarding any such comments prior to responding thereto and (iv) promptly provide the Company with copies of any written responses to any such comments. Parent and Purchaser shall cause the Offer Documents filed by either Parent or Purchaser with the SEC to comply in all material respects with the provisions requirements of applicable federal securities laws Law and, on the date first filed with the SEC and on the date first published, sent or given to the Company’s stockholdersholders of shares of Company Common Stock, shall not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be covenant is made by Acquirer Parent or Purchaser with respect to information supplied by or on behalf of the Company specifically for inclusion or incorporation by reference in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Purchaser and the Company shall promptly correct any information provided by it for use in the Offer Documents as well as any material omissions from the Offer Documents if and to the extent that it shall have has become aware that such information has become false and or misleading in any material respect prior to the Expiration Date respect. Parent and Acquirer further Purchaser shall take all steps necessary to cause the Offer Documents as so corrected to be promptly filed with the SEC and to be disseminated to holders of Shares, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel Laws.
(c) Parent shall provide or cause to be given an opportunity provided to review and comment upon Purchaser on a timely basis the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
(d) Purchaser shall not terminate the Offer Documents prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, Purchaser shall terminate the Offer promptly (and in any event within one (1) Business Day of such termination of this Agreement pursuant to Article VIII), and Purchaser shall provide not acquire any comments thereon as soon as practicable) Shares pursuant to the Offer. If the Offer is terminated by Purchaser, or if this Agreement is terminated pursuant to Article VIII prior to the filing thereof acquisition of Shares in the Offer, Purchaser shall promptly (and in any event within two (2) Business Days of such termination) return, and shall cause any depositary or other agent acting on behalf of Purchaser to return, in accordance with applicable Law, all Shares tendered into the Offer to the registered holders thereof.
(e) The (i) Offer Price and (ii) Merger Consideration will be adjusted appropriately to reflect any reclassification, recapitalization, division or subdivision of shares, consolidation of shares, stock split (including a reverse stock split), or combination, exchange, or readjustment of shares, or any stock dividend or stock distribution occurring (or for which a record date is established) or other similar transaction after the date of this Agreement and prior to (A) the payment by Purchaser for Shares validly tendered and not validly withdrawn in connection with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff Offer (with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer Price) or its counsel(B) the Effective Time (with respect to the Merger Consideration).
(df) Prior Parent shall, and shall cause the Rights Agent to, at or prior to the Share AcceptanceAcceptance Time, there shall have been contributed to Acquirerduly authorize, or shall have been properly tendered execute and not withdrawn in deliver the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)CVR Agreement.
Appears in 1 contract
Samples: Merger Agreement (Akouos, Inc.)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement set forth and the proviso in the first sentence of Section 6.01 1.02(b), as promptly as practicable, practicable (but in no event less later than ten (1010 business days) business days after the public announcement of the execution date of this Agreement, Acquirer Sub shall, and Parent shall commence (cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer (the “Offer”) ; provided that, if the Company is unable to purchase for cash all of file the issued and outstanding Shares at a price of $2.25 per Share, net Schedule 14D-9 on the same day Parent is prepared to the seller in cash (such price, or such other price per Share as may be paid in commence the Offer, being referred to herein then such 10-business day period shall be tolled until such time as the “Offer Price”), subject Company is prepared to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such sellerfile the Schedule 14D-9 with the SEC. The obligations of Sub to, and of Parent to cause Sub to, accept for payment, and pay for, any shares of Company shall not tender Shares held by it or any of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer subject only to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an Exhibit A (the “Offer Conditions”). The initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which of the Offer is extended in accordance with this Agreementshall be midnight, New York City time, on the 20th business day immediately following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from ). Subject to applicable Law, Sub expressly reserves the date right to, in its sole discretion, waive, in whole or in part, any Offer Condition at any time prior to the expiration of commencement the Offer or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer; provided, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01however, that, without the prior written consent of the Company, authorized Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) waive the Minimum Tender Condition or the conditions to the Offer set forth in lettered paragraph (b) of Exhibit A or numbered paragraph (i) of Exhibit A, (iv) add to the conditions set forth in Exhibit A or modify any Offer Condition (other than as required by Law, the Special Committee. Acquirer shall (which will SEC or its Staff in a manner that is not require adverse to the consent holders of the CompanyCompany Common Stock), (v) except as otherwise provided in this Section 1.01(a), extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock or any manner that would result in any mandatory extension of the Offer (other than an increase in the Offer Price in response to an Acquisition Proposal). Notwithstanding anything in this Agreement to the contrary: (A) extend in the event that any of the Offer for Conditions (including the shortest time periods which it reasonably believes are necessary, Minimum Tender Condition or any of the other Offer Conditions set forth in one or more such periods, if any, to satisfy any such condition that has Exhibit A) is not by then been satisfied (or waived by Acquirer in its discretion (if permitted hereunder) as of immediately prior to the extent permitted by Section 6.03) and expiration of the Offer (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn as it may be extended from time to time pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basisin accordance with this Section 1.01(a)), after giving effect to the exercise or conversion of all optionsSub shall, rights and securities exercisable or convertible into voting securities of the Company)Parent shall cause Sub to, extend the Offer for successive extension periods of up to ten 10 business days each (10or (x) business daysany longer period as may be mutually agreed by Parent and the Company or (y) any shorter period ending on the Termination Date, notwithstanding that if applicable) in order to permit the satisfaction of all of the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, Offer; and (B) Acquirer maySub shall, under and Parent shall cause Sub to, extend the terms Offer for any period required by any rule, regulation, interpretation or position of the Offer, provide for a subsequent offering period of up to ten New York Stock Exchange (10the “NYSE”) business days in accordance with Rule 14d-11 of or the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided, however, that Sub shall not be required to (and Parent shall not be required to cause Sub to) extend the Offer beyond the Termination Date. On the terms and subject to the conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer promptly (within the meaning of Section 14e-1(c) promulgated under the Exchange Act) after the expiration date of the Offer (as it may be extended from time to time pursuant to and in accordance with this Section 1.01(a)). Acceptance for payment of shares of Company Common Stock pursuant to the Offer is referred to in this Agreement as the “Offer Closing”, and the time at which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Time”. Sub expressly reserves the right to, in its sole discretion, provide for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents shall provide for such a reservation of right.
(b) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Offer Closing in accordance with the terms of this Agreement.
(c) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents Company shall comply in furnish to Parent and Sub all material respects with information concerning the provisions of applicable federal securities laws and, on Company required by the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion set forth in the Offer Documents. Acquirer Each of Parent, Sub and the Company shall further 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 Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable federal Federal securities lawsLaws, the SEC or its staff or the NYSE. Each Parent and Sub shall promptly notify the Company upon the receipt of Acquirer 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. Unless the Board of Directors of the Company shall promptly correct any information provided by it for use in has effected an Adverse Recommendation Change, prior to the filing of the Offer Documents if and to the extent that it shall have become false and misleading in (including any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed amendment or supplement thereto) with the SEC and to be disseminated to holders of Shares, in each case as and or dissemination thereof to the extent required by applicable federal securities laws. The stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Sub shall provide the Company and its counsel shall be given an a reasonable opportunity to review and comment upon the on such Offer Documents or response (and shall provide any comments thereon as soon as practicable) prior to including the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselproposed final version thereof).
(d) Prior Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Sub becomes obligated to accept for payment, and pay for, pursuant to the Share AcceptanceOffer.
(e) Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, there shall have been contributed to Acquireras amended (the “Code”), or any provision of state, local or foreign tax Law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Sub, such withheld amounts shall have be treated for all purposes of this Agreement as having been properly tendered and not withdrawn in paid to the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member holder of the Acquirer Group)shares of Company Common Stock in respect of which such deduction and withholding was made by Sub.
Appears in 1 contract
Samples: Merger Agreement (Komag Inc /De/)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10) 10 business days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent and Holdings shall cause Merger Sub to, commence (the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”); provided, however, that Parent, Holdings and Merger Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The obligations of Merger Sub to, and of Parent and Holdings to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the satisfaction or waiver of the conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of the Offer shall be 12:00 midnight, New York City time, on the 20th business day following the commencement of the Offer (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer (). Merger Sub expressly reserves the “Offer”) right to purchase for cash all waive any Offer Condition or modify the terms of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as except that, without the “Offer Price”)consent of the Company, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company Merger Sub shall not tender Shares held by it or any (i) reduce the number of its Subsidiaries pursuant shares of Company Common Stock subject to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to (ii) reduce the Offer set forth in Section 6.01Price, and (iii) waive or amend the Minimum Tender Condition, (iv) add to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in this Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”1.01(a), which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in extend the Offer, amend (vi) change the conditions to form of consideration payable in the Offer set forth in Section 6.01 or impose conditions to (vii) otherwise amend the Offer in addition any manner adverse to those set forth in Section 6.01the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periodsconsecutive increments of not more than seven business days each, if anyat the scheduled expiration date of the Offer any of the Offer Conditions is not satisfied, to satisfy any until such condition that has not by then been time as such conditions are satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and or (B) ifextend the Offer for the minimum period required by any rule, on regulation, interpretation or position of the Expiration Date, SEC or the number of Shares validly tendered and not withdrawn pursuant staff thereof applicable to the Offer is less than eighty-five percent (85%) Offer. In addition, if at the otherwise scheduled expiration date of the Shares that are outstanding Offer any Offer Condition is not satisfied, Merger Sub shall, and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights Parent and securities exercisable or convertible into voting securities of the Company)Holdings shall cause Merger Sub to, extend the Offer at the request of the Company for up one or more consecutive increments of not more than seven business days each (or for such longer period as may be agreed by Parent and the Company); provided that Merger Sub shall not be required to, and Parent and Holdings shall not be required to ten (10) business dayscause Merger Sub to, notwithstanding that all the conditions to extend the Offer were satisfied as beyond the date that is 90 days after the initial expiration date of the date Offer only if the Minimum Tender Condition is not satisfied at such extensiontime. In addition, (A) the Offer Price Merger Sub may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a make available one or more “subsequent offering period of up to ten (10) business days periods”, in accordance with Rule 14d-11 of the Exchange Act following Act, of at least three and not more than 20 business days each, unless Parent has become the Share Acceptanceowner, directly or indirectly, of 90% or more of the outstanding shares of Company Common Stock. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent and Holdings shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered in accordance with the terms of the Offer and not withdrawn that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer and, in any event, no more than two business days after the Offer Closing Date. The date on which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is referred to as the “Offer Closing Date”.
(cb) On the date of commencement of the Offer is commencedOffer, Acquirer Parent, Holdings and Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents Company shall comply in furnish to Parent, Holdings and Merger Sub all material respects with information concerning the provisions of applicable federal securities laws and, on Company required by the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion set forth in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Holdings, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior to the Expiration Date respect, and Acquirer further each of Parent, Holdings and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to holders of Sharesthe Company’s stockholders, in each case as and to the extent required by applicable federal Federal securities lawsLaws. The Company Parent, Holdings and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any comments that Acquirer Parent, Holdings, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent, Holdings and copies of Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent, Holdings and Merger Sub shall give reasonable and good faith consideration to any written responses and telephonic notification of any verbal responses comments made by Acquirer the Company or its counsel.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Prior Parent, Holdings and Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Share AcceptanceOffer to any holder of shares of Company Common Stock such amounts as Parent, there shall have been contributed Holdings or Merger Sub is required to Acquirerdeduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign tax Law. To the extent amounts are so withheld and paid over to the appropriate taxing authority, such withheld amounts shall have be treated for all purposes of this Agreement as having been properly tendered paid to the Person in respect of which such deduction and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)withholding was made.
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10eight business days) business days after the public announcement of the execution date of this Agreement, Acquirer Merger Sub shall, and Parent shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer (the “Offer”) Offer to purchase for cash all of the issued and outstanding Shares at a price shares of $2.25 per ShareCompany Common Stock; provided, net to that the seller in cash (such price, or such other price per Share as may Company agrees that no shares of Company Common Stock owned by the Company will be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries tendered pursuant to the Offer. Acquirer shallThe obligations of Merger Sub to, on the terms and subject of Parent to the prior satisfaction or waiver cause Merger Sub to, accept for payment, and pay for, any shares of the conditions Company Common Stock tendered pursuant to the Offer set forth in Section 6.01, and are subject only to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date Exhibit A (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended as they may be amended in accordance with this Agreement, the “Offer Conditions”).
(i) The initial expiration date of twenty the Offer shall be midnight, New York City time, on the 20th business day following the commencement of the Offer (20determined pursuant to Rule 14d-1(g)(3) business days (as defined in Rule 14d-1 under the Exchange Act) from ). Merger Sub expressly reserves the date of commencement right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer; provided, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01however, that, without the prior written consent of the Company, authorized by Merger Sub shall not (A) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require B) reduce the consent Offer Price or change the form of consideration payable in the CompanyOffer, (C) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (D) add to the Offer Conditions, or (E) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock.
(ii) Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, any of the conditions to the offer (including the Minimum Tender Condition and the other conditions and requirements set forth herein and in Exhibit A) is not satisfied or, in Merger Sub’s sole discretion, waived, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of time to be determined at the shortest sole discretion of the Merger Sub; provided, however, that in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time periods which it reasonably believes are necessary, in one that Parent or more such periods, if any, Merger Sub is permitted to satisfy any such condition that has not by then been satisfied terminate this Agreement pursuant to ARTICLE VIII.
(or waived by Acquirer in its discretion iii) On the terms and subject to the extent permitted by conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 6.031.1(d)) and (B) if, on the Expiration Date, the number all shares of Shares Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after Merger Sub is less than eighty-five percent (85%) legally permitted to do so under applicable Law. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to Offer upon the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities expiration of the Company)Offer is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, following the Offer Closing, extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a “subsequent offering period of up to ten (10) business days period” in accordance with Rule 14d-11 of under the Exchange Act following Act, and the Share AcceptanceOffer Documents (as defined below) may, in Merger Sub’s sole discretion, provide for such a reservation of right. Nothing contained in this Section 1.1(a) shall affect any termination rights in ARTICLE VIII.
(cb) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO , which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement and other appropriate ancillary offer documents (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The , and cause the Offer Documents shall comply in all material respects with to be disseminated to the provisions stockholders of applicable the Company as and to the extent required by federal securities laws andlaws. Each of Parent, on Merger Sub and the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, Company shall not contain promptly correct 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 shall be made by Acquirer with respect to information supplied by the Company it for inclusion or incorporation by reference in the Offer Documents. Acquirer Documents if and to the extent that such information shall further have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to holders the stockholders of Sharesthe Company, in each case as soon as reasonably practicable and as and to the extent required by applicable federal securities laws. Each Parent and Merger Sub shall promptly notify the Company upon the receipt of Acquirer any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their representatives, on the one hand, and the Company shall promptly correct any information provided by it for use in SEC, on the other hand. Prior to the filing of the Offer Documents if and to the extent that it shall have become false and misleading in (including any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed amendment or supplement thereto) with the SEC and to be disseminated to holders of Shares, in each case as and or dissemination thereof to the extent required by applicable federal securities laws. The stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given an a reasonable opportunity to review and comment upon the on such Offer Documents (or response, and Parent and Merger Sub shall provide give reasonable consideration to any such comments. In the event that Parent or Merger Sub receives any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to (i) respond promptly after receipt of to such comments and copies (ii) take all other actions necessary to resolve the issues raised therein.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the consideration necessary to pay for any shares of any written responses Company Common Stock that Merger Sub becomes obligated to accept for payment, and telephonic notification pay for, pursuant to the Offer and shall cause Merger Sub to fulfill all of any verbal responses by Acquirer or its counselMerger Sub’s obligations under this Agreement.
(d) Prior Parent, Merger Sub or the paying agent for the Offer (the “Paying Agent”) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Share AcceptanceOffer to any holder of shares of Company Common Stock such amounts as Parent, there shall have been contributed Merger Sub or the Paying Agent is required to Acquirerdeduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations issued pursuant thereto (the “Code”), or any provision of state or local Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate taxing authority, such withheld amounts shall have be treated for all purposes of this Agreement as having been properly tendered and not withdrawn in paid to the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member holder of the Acquirer Group)shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Merger Sub or the Paying Agent.
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Samples: Merger Agreement (Nupathe Inc.)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement set forth in Section 6.01 Agreement, Merger Sub shall, as promptly as practicable, but reasonably practicable and in no event less later than ten (10) business days after the public announcement of the execution of this AgreementDecember 22, Acquirer shall 2010, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer are subject to satisfaction of the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be 11:59 p.m. (New York City time) on the date that is the later of (x) twenty (20) business days from the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) and (y) January 24, 2011 (such date, the initial “Expiration Date” and any expiration time and date established pursuant to an offer extension of the Offer as so extended, also an “Expiration Date”). Merger Sub expressly reserves the right to increase the Offer Price and to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) waive the Minimum Tender Condition or the Tender Offer Extension Condition, (iv) add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Shares, (v) except as otherwise provided in this Section 1.1(a), extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) otherwise amend or modify the Offer in any manner adverse to the holders of Shares. Notwithstanding the foregoing, Merger Sub may, in its sole discretion, without the consent of the Company, (i) extend the Offer for one or more consecutive increments of not more than ten (10) business days each, if at any otherwise scheduled Expiration Date of the Offer any of the conditions to Merger Sub’s obligation to purchase Shares are not satisfied or waived, (ii) extend the Offer for the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the “OfferSEC”) or the staff thereof applicable to purchase for cash all the Offer or (iii) make available a “subsequent offering period” in accordance with Exchange Act Rule 14d-11. In addition, at the request of the issued Company in its sole discretion, (i) if the Company’s board of directors has designated at least one party to be an Excluded Party, and outstanding Shares at such party has not ceased to be an Excluded Party under this Agreement, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one single increment equal to that number of days such that the Expiration Date will fall on the 18th day following the initial Expiration Date or, if such day is not a price business day, on the first business day thereafter (such increment, the “EP Tender Offer Extension”) or (ii) if there has been no EP Tender Offer Extension, and the termination of $2.25 per Share, net the waiting period with respect to the seller Merger under the HSR Act has not yet occurred, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer up to two (2) times in cash nine day increments (each successive extension shall only be made if termination has not yet occurred) such that if both extensions are made, the Expiration Date would fall on the 18th day following the initial Expiration Date or, if such day is not a business day, on the first business day thereafter (such priceincrement, or such other price per Share as may be paid in the Offer, being referred to herein as the “HSR Tender Offer PriceExtension” and together with the EP Tender Offer Extension, the “Tender Offer Extension”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on On the terms and subject to the prior satisfaction or waiver conditions of the conditions to the Offer set forth in Section 6.01and this Agreement, Merger Sub shall, and to its rights to extend the Offer under Section 1.01(b)Parent shall cause Merger Sub to, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of all Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Merger Sub becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as of soon as practicable after the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms expiration of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.1 and subject to so long as none of the conditions of this Agreement events or circumstances set forth in Section 6.01 as promptly as practicableAnnex A hereto shall have occurred and be continuing, but in no event less not later than ten (10) the fifth business days after day from the date of public announcement of the execution of this Agreement, Acquirer Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”")), an offer the Offer at (the “Offer”i) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net equal to the seller in cash Common Stock Price for the Company Common Stock and (such price, or such other ii) a price per Share as may be paid in equal to the Preferred Stock Price for the Company Preferred Stock. The obligation of Purchaser to consummate the Offer, being referred to herein accept for payment and to pay for any Securities tendered pursuant to the Offer shall be subject to those conditions set forth in Annex A. It is agreed that the conditions to the Offer set forth on Annex A are for the benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by Purchaser) and Purchaser expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the consent of the Company, Parent or Purchaser shall not waive the Minimum Condition (as defined in Annex A) or the “condition set forth in paragraph (h) of Annex A (except that Purchaser expressly reserves the right, in its sole direction, to waive the condition set forth in clause (y) in the definition of the Minimum Condition contained in the first paragraph of Annex A). The initial expiration date of the Offer Price”shall be the 20th business day following the commencement of the Offer (determined using Rule 14d-1(c)(6) under the Exchange Act).
(b) Purchaser expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer, provided that without the prior consent of the Company, no modification or change may be made which (i) decreases the consideration payable in the Offer (except as permitted by this Agreement), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes (ii) changes the form of consideration payable in the Offer (other than by such seller. The Company shall not tender Shares held by it or any adding consideration), (iii) changes the Minimum Condition, (iv) decreases the maximum number of its Subsidiaries Securities sought pursuant to the Offer, (v) changes the material conditions to the Offer in a manner adverse to the Company or its shareholders or option holders, or (vi) imposes additional material conditions to the Offer (other than in respect of any consideration which is payable in addition to the Common Stock Price and Preferred Stock Price). Acquirer shallNotwithstanding the foregoing, Purchaser may (but shall not be required under this Agreement or otherwise to), without the consent of the Company, (i) extend the Offer on one or more occasions for such period as may be determined by Purchaser in its sole discretion (each such extension period not to exceed 10 business days at a time), if at the terms then scheduled expiration date of the Offer any of the conditions to Purchaser's obligations to accept for payment and subject pay for Securities shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (iii) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days if the Minimum Condition has been satisfied but less than 80% of each of the Company Common Stock and Company Preferred Stock have been validly tendered and not properly withdrawn, and (iv) extend the Offer for any reason on one occasion for an aggregate period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence, notwithstanding the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, on Annex A. On the terms and subject to its rights to extend the conditions of the Offer under Section 1.01(b)and this Agreement, promptly after expiration of the Offer Purchaser shall accept for payment and pay for, and Parent shall cause Purchaser to accept for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement payment and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”pay for, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares all Securities validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Purchaser becomes obligated to purchase pursuant to the exercise or conversion of all optionsOffer. Notwithstanding the foregoing, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up Purchaser may in its sole discretion elect to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with pursuant to, and on the terms required by, Rule 14d-11 of under the Exchange Act following the Share AcceptanceAct.
(c) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Purchaser shall file with the United States Securities and Exchange Commission (SEC with respect to the “SEC”) Offer a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”). The Schedule TO shall contain or shall incorporate by reference 14D-1") with respect to the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall which will comply in all material respects with the provisions of applicable federal securities laws andlaws, on and will contain the date filed with the SEC and on the date first published, sent or given offer to purchase relating to the Company’s stockholdersOffer (the "Offer to Purchase") and forms of related letters of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "Offer Documents"). Parent 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 deliver copies of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by proposed forms of the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause Schedule 14D-1 and the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect within a reasonable time prior to the Expiration Date and Acquirer further shall take all steps necessary to cause commencement of the Offer Documents as so corrected to be filed with for review and comment by the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity counsel. Parent agrees to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer Purchaser, Parent or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. Each of the Company, Parent and Purchaser shall promptly correct any information provided by it for use in the Schedule 14D-1 or the Offer Documents that shall have become false or misleading in any material respect and Parent and Purchaser further agree to take all steps necessary to cause such comments Schedule 14D-1 or Offer Documents as so corrected to be filed with the SEC and copies disseminated to the shareholders of any written responses the Company, as and telephonic notification of any verbal responses to the extent required by Acquirer or its counselapplicable federal securities laws.
(d) Prior The parties understand and agree that the Common Stock Price and Preferred Stock Price have been calculated based upon the accuracy of the representation and warranty set forth in Section 3.2(a) and that, in the event the number of outstanding shares of Company Common Stock or the number of shares of Company Common Stock issuable upon the exercise or conversion of, or subject to, options, warrants, securities or other agreements exceeds the amounts specifically set forth in Section 3.2(a) (assuming for this purpose the conversion of outstanding Company Preferred Stock into Company Common Stock) (including without limitation as a result of any stock split, stock dividend, including any dividend or distribution of securities convertible into shares of the Company Common Stock, recapitalization, or other like change occurring after the date of this Agreement) or the number of Options and exercise prices therefor set forth in Section 3.2(a) of the Company Disclosure Schedule are inaccurately stated in any manner adverse to Parent or Purchaser, the Share AcceptanceCommon Stock Price and Preferred Stock Price shall be appropriately adjusted downward. The provisions of this paragraph (d) shall not, however, affect the representation set forth in Section 3.2(a). Notwithstanding the foregoing, there shall have been contributed be no adjustment pursuant to Acquirerthis paragraph (d) with respect to the issuance of shares of Company Common Stock upon the exercise of Options disclosed on Section 3.2(a) of the Company Disclosure Schedule.
(e) Notwithstanding any provision to the contrary contained in this Agreement, or shall have been properly tendered Parent and not withdrawn Purchaser may terminate the Offer as it relates to the Company Preferred Stock in the Offer, event that Parent or Purchaser has acquired all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)outstanding shares of Company Preferred Stock, including pursuant to the exercise of the Purchase Option pursuant to the Tender and Option Agreement.
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The Offer. (a) Provided Subject to the conditions of this Agreement Agreement, as promptly as practicable, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to accept for payment, and pay for, any Shares tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 20th Business Day following the commencement of the Offer (determined using Exchange Act Rule 14d-1(g)(3)). Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not have been terminated (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, (i) extend the Offer in increments of not more than five (5) Business Days each, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub’s obligation to purchase Shares are not satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. In addition, if at any otherwise scheduled expiration date of the Offer any condition to the Offer is not satisfied, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company for not less than five (5) Business Days. In addition, Merger Sub shall, if requested by either the Company or the Parent, make available a “subsequent offering period”, in accordance with Section 7.01 Exchange Act Rule 14d-11, of not less than ten (10) Business Days; provided that Merger Sub shall not be required to make available such a subsequent offering period in the event that, prior to the commencement of such subsequent offering period, Parent and Merger Sub, directly or indirectly own more than 80% of the Fully Diluted Shares. On the terms and subject to the conditions of this Agreement set forth in Section 6.01 as promptly as practicable, but in no event less than ten (10) business days after the public announcement of the execution of Offer and this Agreement, Acquirer Merger Sub shall, and Parent shall commence cause Merger Sub to, pay for all Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. The time at which Merger Sub initially accepts Shares for payment pursuant to the Offer shall be referred to herein as the (within “Acceptance Time”).
(b) On the meaning date of commencement of the Offer, Parent and Merger Sub shall file with the SEC and deliver to the Company and its counsel a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”). Concurrently with the filing of the Offer Documents, Parent and Merger Sub shall prepare and file with the SEC a registration statement on Form S-4 to register under the Securities Act of 1933, as amended (the “Securities Act”), the offer and sale of Parent Common Stock and Parent Preferred Stock pursuant to the Offer (the “S-4”). The S-4 will include a preliminary prospectus (the “Preliminary Prospectus”) containing the information required under Rule 14d-2 14d-4(b) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents and the S-4 if and to the extent that it such information shall have become false and or misleading in any material respect prior to the Expiration Date respect, and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and the S-4 and to cause the Offer Documents and the S-4 as so corrected amended or supplemented to be filed with the SEC and the Offer Documents and the S-4 as so amended or supplemented to be disseminated to holders of Sharesthe Company’s stockholders, in each case as and to the extent required by applicable federal securities laws. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any comments that Acquirer Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents and the S-4 promptly after the receipt of such comments comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds and copies of securities necessary to purchase any written responses and telephonic notification of any verbal responses by Acquirer or its counselShares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Prior The Company hereby grants to Parent and Merger Sub an irrevocable option (the “Top-Up Option”) to purchase at a price per share equal to the Cash Value of the Offer Price up to that number of newly issued shares of the Company Common Stock (the “Top-Up Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock, directly or indirectly, owned by Parent and Merger Sub at the time of exercise of the Top-Up Option shall constitute one share more than ninety percent (90%) of the Fully Diluted Shares immediately after the issuance of the Top-Up Shares. The Top-Up Option shall be exercisable only once, at such time as Parent and Merger Sub, directly or indirectly, own at least 80% of the Fully Diluted Shares and prior to the fifth Business Day after the expiration date of the Offer or the expiration date of any subsequent offering period. Such Top-Up Option shall not be exercisable to the extent the number of shares of Company Common Stock subject thereto (taken together with the number of Fully Diluted Shares outstanding at such time) exceeds the number of authorized shares of Company Common Stock available for issuances. The obligation of the Company to deliver the Top-Up Shares upon the exercise of the Top-Up Option is subject to the condition that no provision of any applicable Law or rule of the NASDAQ Global Market and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Shares in respect of such exercise. The parties shall cooperate to ensure that the issuance of the Top-Up Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Shares under the Securities Act. In the event Parent and Merger Sub wish to exercise the Top-Up Option, Merger Sub shall give the Company one (1) Business Day prior written notice specifying the number of shares of the Company Common Stock that are or will be, directly or indirectly, owned by Parent and Merger Sub immediately preceding the purchase of the Top-Up Shares and specifying a place and a time for the closing of such purchase. The Company shall, as soon as practicable following receipt of such notice, deliver written notice to Merger Sub specifying the number of Top-Up Shares. At the closing of the purchase of Top-Up Shares, the portion of the purchase price owed by Parent or Merger Sub upon exercise of such Top-Up Option shall be paid to the Company in cash by wire transfer or cashier’s check. The “Cash Value of the Offer Price” shall mean the greater of (i) $0.9068, and (ii) an amount equal to the highest price per Share Acceptance, there shall have been contributed paid pursuant to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
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The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject to So long as none of the conditions of this Agreement events set forth in Section 6.01 clauses (a) through (i) of Annex I hereto (as promptly as practicablehereinafter provided) shall have occurred or exist, but in no event less than ten (10) business days after the public announcement of Purchaser shall, and Parent shall cause the execution of this AgreementPurchaser to, Acquirer shall commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”")) as promptly as practicable after the date hereof, an offer (but in any event not later than October 22, 1997, the “Offer”) Offer for all outstanding Securities at the Securities Offer Price applicable to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Sharesuch Securities, net to the seller in cash (such pricecash. The initial expiration date for the Offer shall be the twentieth business day from and after the date the Offer is commenced, or such other price per Share as may be paid in including the Offer, being referred to herein date of commencement as the “first business day in accordance with Rule 14d-2 under the Exchange Act (the "Initial Expiration Date"). As promptly as practicable, the Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Price”Statement on Schedule 14D-1 (together with any supplements or amendments thereto, the "Offer Documents"), subject which shall contain (as an exhibit thereto) the Purchaser's Offer to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company Purchase (the "Offer to Purchase") which shall not tender Shares held by it or any be mailed to the holders of its Subsidiaries pursuant Securities with respect to the Offer. Acquirer shall, on the terms and subject The obligation of Parent to accept for payment or pay for any Securities tendered pursuant to the prior Offer will be subject only to the satisfaction or waiver of the conditions (which waiver is restricted only to the Offer extent set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(bnext succeeding sentence) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the OfferAnnex I hereto. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without Without the prior written consent of the Company, authorized the Purchaser shall not decrease the price per Security or change the form of consideration payable in the Offer, decrease the number of Shares or Warrants sought to be purchased in the Offer, change the conditions set forth in Annex I, waive or reduce the Minimum Condition (as defined in Annex I) to lower than fifty percent of the fully diluted Common Shares, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of any Securities, provided, however, that if all of the conditions to the Offer are then satisfied or waived, the Parent, in order to permit the Merger to become effective without a meeting of Shareholders in accordance with Section 253 of the GCL, shall have the right (i) to extend the Offer for a period or periods aggregating up to ten business days from the then effective Expiration Date; provided, that prior to any such extensions referred to in this clause (i), Parent and the Purchaser shall deliver to the Company a written notice that all conditions set forth on Annex I hereto are permanently deemed to be satisfied except for a failure of the Minimum Condition to occur or any other such conditions the failure of which to be satisfied results from an intentional breach hereof by the Special Committee. Acquirer shall Company, and (which will not require ii) thereafter to extend the Offer with the prior written consent of the Company), (A) ; and provided further that Parent may extend the Offer to the extent required by law or regulation. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver (which waiver is restricted only to the extent set forth in the immediately preceding sentence) of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Parent will accept for payment and pay for all Securities validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such expiration date of the Offer. Subject to Section 8.01, if the conditions set forth in Annex I hereto are not satisfied or, waived by the Parent, as of the Initial Expiration Date (or any subsequently scheduled expiration date), Parent will extend the Offer from time to time for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to necessary until the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms consummation of the Offer, provide for a subsequent offering period . Each of up Parent and the Purchaser shall use its reasonable best efforts to ten (10) business days avoid the occurrence of any event specified in accordance with Rule 14d-11 of the Exchange Act following the Share AcceptanceAnnex I or to cure any such event that shall have occurred.
(cb) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall 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 stockholdersShareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be is made by Acquirer Parent or the Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent and the Company shall Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and or misleading in any material respect prior and the Purchaser further agrees to the Expiration Date and Acquirer further shall 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 SharesShareholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10) 10 business days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent and Holdings shall cause Merger Sub to, commence (the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”); provided, however, that Parent, Holdings and Merger Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The obligations of Merger Sub to, and of Parent and Holdings to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the satisfaction or waiver of the conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of the Offer shall be 12:00 midnight, New York City time, on the 20th business day following the commencement of the Offer (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer (). Merger Sub expressly reserves the “Offer”) right to purchase for cash all waive any Offer Condition or modify the terms of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as except that, without the “Offer Price”)consent of the Company, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company Merger Sub shall not tender Shares held by it or any (i) reduce the number of its Subsidiaries pursuant shares of Company Common Stock subject to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to (ii) reduce the Offer set forth in Section 6.01Price, and (iii) waive or amend the Minimum Tender Condition, (iv) add to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in this Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”1.01(a), which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in extend the Offer, amend (vi) change the conditions to form of consideration payable in the Offer set forth in Section 6.01 or impose conditions to (vii) otherwise amend the Offer in addition any manner adverse to those set forth in Section 6.01the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periodsconsecutive increments of not more than seven business days each, if anyat the scheduled expiration date of the Offer any of the Offer Conditions is not satisfied, to satisfy any until such condition that has not by then been time as such conditions are satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and or (B) ifextend the Offer for the minimum period required by any rule, on regulation, interpretation or position of the Expiration Date, SEC or the number of Shares validly tendered and not withdrawn pursuant staff thereof applicable to the Offer is less than eighty-five percent (85%) Offer. In addition, if at the otherwise scheduled expiration date of the Shares that are outstanding Offer any Offer Condition is not satisfied, Merger Sub shall, and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights Parent and securities exercisable or convertible into voting securities of the Company)Holdings shall cause Merger Sub to, extend the Offer at the request of the Company for up one or more consecutive increments of not more than seven business days each (or for such longer period as may be agreed by Parent and the Company); provided that Merger Sub shall not be required to, and Parent and Holdings shall not be required to ten (10) business dayscause Merger Sub to, notwithstanding that all the conditions to extend the Offer were satisfied as beyond the date that is 90 days after the initial expiration date of the date Offer only if the Minimum Tender Condition is not satisfied at such extensiontime. In addition, (A) the Offer Price Merger Sub may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a make available one or more “subsequent offering period of up to ten (10) business days periods”, in accordance with Rule 14d-11 of the Exchange Act following Act, of at least three and not more than 20 business days each, unless Parent has become the Share Acceptance.
(c) owner, directly or indirectly, of 90% or more of the outstanding shares of Company Common Stock. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent and Holdings shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered in accordance with the terms of the Offer and not withdrawn that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer and, in any event, no more than two business days after the Offer Closing Date. The date on which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect referred to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively as the “Offer DocumentsClosing Date”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10) business days Business Days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer under the applicable rules and regulations of the Securities and Exchange Commission (within the meaning “SEC”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit B (the “Offer Conditions”). The initial expiration date of the Offer (the “Initial Expiration Date”) shall be midnight (New York City time) on the twentieth (20th) Business Day following commencement of the Offer (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right to waive, an offer in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (A) reduce the number of shares of the Company Common Stock subject to the Offer, (B) reduce the Offer Price except in accordance with Section 1.1(e), (C) waive or amend the Minimum Tender Condition, add to the Offer Conditions or modify any Offer Condition in any manner adverse to the holders of the Company Common Stock, (D) except as otherwise provided in this Section 1.1(a), extend the Offer, (E) change the form of consideration payable in the Offer or (F) otherwise amend the Offer in any manner adverse to the holders of the Company Common Stock. Notwithstanding the foregoing, Merger Sub shall extend the Offer for the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, but not beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer any Offer Condition is not satisfied (or to the extent permitted hereby, waived) and until such time as such conditions are satisfied, Merger Sub may, in its sole discretion, without the consent of the Company, or if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one (1) or more occasions, in consecutive increments between two (2) and ten (10) Business Days each, with the length of such period to be determined by Merger Sub or, in the event such extension is requested by the Company, such period between two (2) and (10) Business Days as the Company requests (or in any event such other period as the parties hereto may agree) (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such priceInitial Expiration Date, or such other price per Share as may later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”); provided, however, that Merger Sub shall not be paid required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the earliest to occur of (i) the valid termination of this Agreement in accordance with Article 9 and (ii) the Outside Date. Merger Sub may, in its sole discretion, make available one (1) or more “subsequent offering periods”, in accordance with Rule 14d-11 under the Exchange Act, of not less than three (3) Business Days and not more than twenty (20) Business Days in the Offer, being referred to herein as the “Offer Price”), subject to reduction only aggregate for any applicable federal back-up withholding or stock transfer taxes payable by such sellerall subsequent offering periods. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on On the terms and subject to the prior satisfaction or waiver conditions of the conditions to the Offer set forth in Section 6.01and this Agreement, Merger Sub shall, and to its rights to extend the Offer under Section 1.01(b)Parent shall cause Merger Sub to, accept for payment and pay for Shares tendered as soon as it is legally permitted (subject to do so under applicable law.
(bany withholding of Tax pursuant to Section 4.2(f)) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement all shares of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Merger Sub becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as promptly after the expiration of the Offer.
(b) On the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up Parent and Merger Sub shall file with the SEC, pursuant to ten (10) business days and in accordance with Rule 14d-11 of 14d-3 and Regulation M-A under the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commencedAct, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementshall be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC Parent and on the date first published, sent or given Merger Sub agree 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case shares of the Company Common Stock as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent and Merger Sub for inclusion therein. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior and to the Expiration Date correct any material omissions therein; and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to holders of Sharesthe Company’s shareholders, in each case as and to the extent required by applicable federal Federal securities laws. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing copies of any written comments, and shall inform the Company and its counsel of any oral comments or discussions, that Acquirer Parent, Merger Sub or its their counsel may receive from or engage with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies or the commencement or occurrence of any written responses such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and telephonic notification of Merger Sub shall provide the Company and its counsel 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 and good faith consideration to any verbal responses comments made by Acquirer the Company or its counsel.
(dc) Prior Subject to the Share Acceptanceterms and the conditions of the Offer and this Agreement, there shall have been contributed and the satisfaction (or, if permitted to Acquirerbe waived by Parent and Merger, or shall have been properly tendered the waiver by Parent and not withdrawn in Merger Sub) of the OfferOffer Conditions, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”i) as to which Acquirer or soon as practicable after the applicable Expiration Date, Merger Sub shall accept for payment and promptly (and in any of its members is a signatory event within three (except for 1530 Shares owned by one member of the Acquirer Group3) business days (as determined using Rule 14d-1(g).
Appears in 1 contract
Samples: Merger Agreement
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.1 hereof and subject to none of the conditions events set forth in Annex I hereto shall have occurred and be existing, Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement set forth in Section 6.01 as promptly as practicable, (but in any event no event less later than ten (10) business days after the public announcement of the execution and delivery of this Agreement), Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer. The obligation of Purchaser to accept for payment and to pay for any Company Shares validly tendered shall be subject to the satisfaction of those conditions set forth in Annex I. Purchaser expressly reserves the right from time to time, an offer subject to Sections 1.1(b) and (c) hereof, to waive any such condition, to increase the “Offer”) Per Share Amount, or to purchase for cash all make any other changes in the terms and conditions of the issued and outstanding Shares at a price of $2.25 per Share, Offer. The Per Share Amount shall be net to the seller in cash (such pricecash, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”)without interest, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such sellerSeller. The Company shall not tender agrees that no Company Shares held by it the Company or any of its Subsidiaries subsidiaries (as defined in Section 9.7(j)) will be tendered pursuant to the Offer. Acquirer shall, on the terms and subject to .
(b) Without the prior satisfaction or waiver written consent of the Company, neither Parent nor Purchaser shall decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of Company Shares sought, amend or waive satisfaction of the Minimum Condition (as defined in Annex I), extend the Offer (except as set forth in Section 1.1(d)) or impose additional conditions to the Offer set forth in Section 6.01, and to its rights to extend or amend any other term of the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted in any manner adverse to do so under applicable lawthe holders of Company Shares.
(bc) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (Annex I hereto. As soon as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, practicable on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer Parent and Purchaser shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference ) with respect to the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall that will comply in all material respects with the provisions of all applicable federal securities laws andlaws, on and will contain (including as an exhibit) or incorporate by reference the date Offer to Purchase and forms of the related letter of transmittal and summary advertisement, if any (which documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the SEC Offer and on related transactions, are referred to collectively herein as the date first published, sent “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to holders of Company Shares as required by applicable federal securities laws. Parent and Purchaser agree promptly to correct the Schedule TO or given the Offer Documents if and to the extent that any shall have become false or misleading in any material respect (and the Company’s stockholders, with respect to written information supplied by it specifically for use in the Schedule TO or the Offer Documents, shall not contain promptly notify Parent of any untrue statement required corrections of a material fact such information and shall cooperate with Parent and Purchaser with respect to correcting such information) and to supplement the information provided by it specifically for use in the Schedule TO or omit the Offer Documents to state include any material fact required to be stated therein or information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect and Parent and Purchaser further agree to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an the opportunity to review and comment upon the on any Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof before they are filed with the SEC. In addition, Acquirer The Parent shall provide to the Company and its counsel in writing with any comments that Acquirer the Parent or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselcomments.
(d) Prior The Offer to Purchase shall provide for an initial expiration date of 20 business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement, including the date of the commencement of the Offer as the first business day in accordance with Rule 14d-2 under the Exchange Act. Purchaser agrees that it shall not terminate or withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Share AcceptanceOffer described in Annex I hereto shall not have been satisfied or earlier waived. If at the expiration date of the Offer, there the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived, Parent or Purchaser may, from time to time, for up to 10 business days on each such occasion beyond the then scheduled expiration date, extend the expiration date of the Offer until the date such conditions are satisfied or earlier waived and Parent becomes obligated to accept for payment and pay for Company Shares tendered pursuant to the Offer. Notwithstanding the foregoing, Parent or Purchaser may, without the consent of the Company, (i) extend the expiration date of the Offer (as it may be extended) for any period required by applicable rules and regulations of the SEC in connection with an increase in the consideration to be paid pursuant to the Offer and (ii) provided that Parent and Purchaser waive the conditions of the Offer described in Annex I hereto (other than the Minimum Condition and the conditions in clauses (iv) (a) and (h) of Annex I) and agree not to assert such conditions as a basis for not consummating the Offer, extend the expiration date of the Offer (as it may be extended) for up to 10 business days, if on such expiration date the conditions for the Offer described on Annex I hereto shall have been contributed to Acquirersatisfied or earlier waived, or shall but the number of Company Shares that have been properly validly tendered and not withdrawn in withdrawn, when added to the Company Shares, if any, beneficially owned by Parent represents less than 90% of the then issued and outstanding Company Shares. If at the expiration date of the Offer, all any of the conditions of the Offer described in Annex I hereto (other than the Minimum Condition and the conditions in clauses (iv) (d), (e), (f) and (h) ) have not been satisfied or earlier waived, then Purchaser shall, and Parent shall cause Purchaser to extend the Offer from time to time until such conditions are satisfied or waived for a period not to exceed 20 business days after expiration of the initial Offer period. In the event the Minimum Condition is satisfied and Purchaser purchases Company Shares beneficially owned by any member pursuant to the Offer, Purchaser may, in its sole discretion, provide a “subsequent offering period” of Acquirer or any member of a group that has filed a Schedule 13D not more than 20 business days in accordance with Rule 14d-11 under the Exchange Act Act.
(a “Filing Group”e) as Parent shall provide or cause to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member be provided to Purchaser all of the Acquirer Group)funds necessary to purchase any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the Offer to Purchase.
Appears in 1 contract
Samples: Merger Agreement (Bioreliance Corp)
The Offer. (a) Provided Subject to the conditions of this Agreement, as promptly as practicable but in no event later than five business days after the date hereof, Sub shall, and Parent shall cause Sub to, amend the Offer Documents (as so amended, the “Amended Offer Documents”) and file with the Securities and Exchange Commission (the “SEC”) the Amended Offer Documents; provided, however, that the obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer is subject to the conditions set forth in Annex 1 (any or all of which (other than the Minimum Tender Condition) may, subject to the provisions hereof, be waived by Parent or Sub, subject to applicable Law). The initial expiration date of the Offer (the “Expiration Date”) shall be the 20th business day following the commencement of the Offer (determined pursuant to Rules 14d-1 and 14d-2 promulgated by the SEC). Sub expressly reserves the right to modify the terms and conditions of the Offer, except that, without the prior written consent of the Company, Sub shall not (i) reduce the number of shares of Company Common Stock sought to be purchased in the Offer, (ii) reduce the Offer Price, (iii) reduce or waive the Minimum Tender Condition (defined in Annex 1), (iv) add to the conditions set forth in Annex 1, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other condition of the Offer in any manner adverse to the Company’s stockholders. Sub may, without the consent of the Company, (A) extend the Offer in increments of not more than ten business days each, if at the scheduled Expiration Date any of the conditions to Sub’s obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation, position or request of the SEC or the staff thereof applicable to the Offer and (C) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC). Without limiting the right of Sub to extend the Offer, in the event that any condition set forth in Annex 1 is not satisfied or waived at the scheduled Expiration Date, at the request of the Company, Sub shall, and Parent shall cause Sub to, extend the Expiration Date of the Offer in increments of five business days each until the earliest to occur of (v) the date that is 15 days after the initial Expiration Date, (w) the satisfaction or waiver of such condition, (x) the determination by Parent that such condition to the Offer is not capable of being satisfied on or prior to the date specified in Section 9.01(b)(ii)(B), provided that such inability to satisfy such condition is not due to any failure of Parent or Sub to perform in any material respect any covenant or agreement of Parent or Sub contained herein, or the material breach by Parent or Sub of any representation or warranty contained herein, (y) the termination of this Agreement shall not have been terminated in accordance with its terms and (z) the date specified in Section 7.01 9.01(b)(ii)(B); provided, however, that Parent and Sub shall not be required to so extend the Expiration Date if the failure to satisfy any condition set forth in Annex 1 was caused by or resulted from the failure of the Company to perform in any material respect any covenant or agreement of the Company contained herein, or the material breach by the Company of any representation or warranty contained herein. On the terms and subject to the conditions of this Agreement set forth in Section 6.01 as promptly as practicable, but in no event less than ten (10) business days after the public announcement of the execution of Offer and this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer Sub shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b)Parent shall cause Sub to, accept for payment and pay for Shares shares of Company Common Stock tendered as soon as it is legally permitted to do so under applicable lawLaw.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Merger Agreement (Ruby Merger Corp.)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 as promptly as practicable(including ARTICLE VIII), but in no event less than within ten (10) business days Business Days after the public announcement of the execution date of this Agreement, Acquirer Merger Sub shall, and Parent shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer; provided, being referred to herein as that the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable Company agrees that no shares of Company Common Stock owned by such seller. The the Company shall not tender Shares held by it or any of its Subsidiaries Company Subsidiary will be tendered pursuant to the Offer. Acquirer shallThe obligations of Merger Sub to, on the terms and subject of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the prior Offer are subject only to the satisfaction or waiver of the conditions (to the Offer set forth in Section 6.01, and to its rights to extend the Offer extent permitted under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(bthis Agreement) 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 Section 6.01 hereto and providing for an initial expiration date Exhibit A (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended as they may be amended in accordance with this Agreement, the “Offer Conditions”).
(i) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the The initial expiration date of commencement the Offer shall be 5:00 p.m., New York City time, on July 1, 2010. Merger Sub expressly reserves the right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer; provided, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01however, that, without the prior written consent of the Company, authorized by Merger Sub shall not (i) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require ii) reduce the consent Offer Price or change the form of consideration payable in the CompanyOffer, (iii) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (Aiv) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the impose conditions to the Offer were satisfied as that are different than or in addition to the Offer Conditions, or (v) otherwise amend the Offer in any manner materially adverse to the holders of Company Common Stock.
(ii) Notwithstanding anything in this Agreement to the date such extension. In additioncontrary, Merger Sub (A) the Offer Price may be increasedmay, in which event the Offer shall be extended its sole discretion (subject to the extent required by law in connection with such increaseobligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), in each case without the consent of the Company, extend the Offer on one or more occasions in increments of no more than five (5) Business Days, if on any then-scheduled expiration date of the Offer, any of the Offer Conditions shall not be satisfied or, in Merger Sub’s sole discretion, waived (if permitted under this Agreement), until such time as such condition or conditions are satisfied or waived and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date shall extend the Offer is commencedfor any period required by any rule, Acquirer shall file with regulation, interpretation or position of the United States Securities and Exchange Commission (the “SEC”), the staff thereof or the Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer, and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iii) In addition to the extension obligation set forth in Section 1.1(a)(ii)(B), Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, (A) the Minimum Tender Condition is not satisfied, (B) the condition set forth in subsection (v) of Exhibit A is not satisfied, and prior to such expiration the Company did not have at least five (5) days written notice from Parent of the facts or circumstances underlying the failure of such condition, or (C) the condition set forth in subsection (vii) of Exhibit A is not satisfied, but in each case all of the Offer Conditions set forth in Exhibit A other than those described above are satisfied or, in Merger Sub’s sole discretion, waived, then Merger Sub shall, and Parent shall cause Merger Sub to (x) in the case of clause (A) or clause (C) above, on the first such scheduled expiration date, extend the Offer for ten (10) Business Days (the “Initial Extension”), and if on the scheduled expiration date of the Initial Extension the requirements for extension pursuant to clause (A) or clause (C) (as the case may be) continue to be satisfied, further extend the Offer for five (5) Business Days (the “Second Extension”), or (y) in the case of clause (B) above, on the first such scheduled expiration date, extend the Offer for five (5) Business Days; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times in the case of clause (A) or clause (C) (for a Tender period of ten (10) Business Days for the Initial Extension and five (5) Business Days for the Second Extension), or more than one time, for five (5) Business Days, in the case of clause (B), and in no event shall Merger Sub be required to extend the Offer Statement on Schedule TO with respect (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iv) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer (together with all amendments and supplements thereto and including as soon as practicable after the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference expiration date of the Offer to Purchase (as it may be extended and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together re-extended in accordance with any amendments and supplements thereto, collectively the “Offer Documents”this Section 1.1(a)). The Offer Documents Price payable in respect of each share of Company Common Stock pursuant to the preceding sentence shall comply be paid net to the seller in all material respects with the provisions of applicable federal securities laws andcash, without interest, on the date filed with terms and subject to the SEC conditions of this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and on subject to the conditions of the Offer upon the expiration of the Offer is referred to in this Agreement as the “Offer Closing,” and the date first published, sent or given on which the Offer Closing occurs is referred to in this Agreement as 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 “Offer Closing Date.” Merger Sub expressly reserves the statements thereinright to, in light of the circumstances under which they were madeits sole discretion, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion in following the Offer Documents. Acquirer shall further take all steps necessary to cause Closing, extend the Offer Documents to be filed for a “subsequent offering period” in accordance with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D Rule 14d-11 under the Exchange Act Act; provided, however such period (a “Filing Group”including any extensions thereof) as to which Acquirer or any of its members is a signatory shall not exceed twenty (except for 1530 Shares owned by one member of the Acquirer Group20).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject to So long as none of the conditions of this Agreement events set forth in Section 6.01 clauses (a) through (i) of Annex I hereto (as promptly as practicablehereinafter provided) shall have occurred or exist, but in no event less than ten (10) business days after the public announcement of Purchaser shall, and Parent shall cause the execution of this AgreementPurchaser to, Acquirer shall commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”")) as promptly as practicable after the date hereof, an offer (but in any event not later than October 22, 1997, the “Offer”) Offer for all outstanding Securities at the Securities Offer Price applicable to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Sharesuch Securities, net to the seller in cash (such pricecash. The initial expiration date for the Offer shall be the twentieth business day from and after the date the Offer is commenced, or such other price per Share as may be paid in including the Offer, being referred to herein date of commencement as the “first business day in accordance with Rule 14d-2 under the Exchange Act (the "Initial Expiration Date"). As promptly as practicable, the Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Price”Statement on Schedule 14D-1 (together with any supplements or amendments thereto, the "Offer Documents"), subject which shall contain (as an exhibit thereto) the Purchaser's Offer to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company Purchase (the "Offer to Purchase") which shall not tender Shares held by it or any be mailed to the holders of its Subsidiaries pursuant Securities with respect to the Offer. Acquirer shall, on the terms and subject The obligation of Parent to accept for payment or pay for any Securities tendered pursuant to the prior Offer will be subject only to the satisfaction or waiver of the conditions (which waiver is restricted only to the Offer extent set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(bnext succeeding sentence) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the OfferAnnex I hereto. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without Without the prior written consent of the Company, authorized by the Special Committee. Acquirer Purchaser shall (which will not require decrease the consent price per Security or change the form of consideration payable in the Company)Offer, (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, decrease the number of Shares validly tendered and not withdrawn pursuant or Warrants sought to be purchased in the Offer, change the conditions set forth in Annex I, waive or reduce the Minimum Condition (as defined in Annex I) to lower than fifty percent of the fully diluted Common Shares, impose additional conditions to the Offer is less than eighty-five percent (85%) or amend any other term of the Shares that are outstanding and not held by Offer in any member of a Filing Group (determined on a fully diluted basis, after giving effect manner adverse to the exercise or conversion holders of any Securities, provided, however, that if all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were are then satisfied as or waived, the Parent, in order to permit the Merger to become effective without a meeting of Shareholders in accordance with Section 253 of the date such extension. In additionGCL, shall have the right (Ai) to extend the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of or periods aggregating up to ten (10) business days in accordance with Rule 14d-11 of from the Exchange Act following the Share Acceptance.then effec-
(cb) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall 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 stockholdersShareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be is made by Acquirer Parent or the Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent and the Company shall Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).have
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 7.01 Section 8.01, Merger Sub shall, and subject to the conditions of this Agreement set forth in Section 6.01 Parent shall cause Merger Sub to, as promptly as practicable, but practicable after the Agreement Date (and in any event no event less later than ten (10) business days Business Days after the date of the initial public announcement of the execution of this Agreement), Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer () the “Offer”) Offer to purchase for cash any and all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. .
(b) The Company shall not tender Shares held by it or any obligation of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01Merger Sub to, and of Parent to its rights to extend the Offer under Section 1.01(b)cause Merger Sub to, accept for payment and pay for any Shares tendered pursuant to the Offer is subject only to the satisfaction or waiver (as soon as it is legally permitted to do so under applicable law.
(bprovided in Section 1.01(c) The Offer shall be made by means below) of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date Annex I (the “Expiration DateOffer Conditions”, which term shall also indicate any later date ). On the terms and subject to which the conditions of the Offer is extended in accordance with and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) of twenty (20) business days as soon as practicable after the Expiration Date (as defined in Rule 14d-1 under Section 1.01(e) below) and in compliance with applicable Law (as defined in Section 4.12(a) below). The acceptance for payment of Shares pursuant to and subject to the Exchange Act) from conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Closing occurs is referred to in this Agreement as the “Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub on or prior to the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Closing funds necessary to purchase and pay for any and all Shares sought in the Offer, amend the conditions that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer set forth in Section 6.01 or impose conditions and this Agreement.
(c) Parent and Merger Sub expressly reserve the right to waive any of the Offer in addition to those set forth in Section 6.01, without Conditions other than the Minimum Condition (which Minimum Condition may be waived by Parent and Merger Sub only with the prior written consent of the Company), authorized and to increase the Offer Price or to make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided that, unless otherwise expressly provided in this Agreement or previously approved by the Special Committee. Acquirer Company in writing, Parent and Merger Sub shall not: (which will not require i) decrease the consent Offer Price or change the form of consideration payable in the Company)Offer, (Aii) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, decrease the number of Shares validly tendered and not withdrawn pursuant sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer is less than eighty-five percent Conditions or amend any Offer Condition, (85%iv) waive or amend the Minimum Condition, (v) amend any other term of the Shares Offer in a manner that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect is adverse to the exercise holders of Shares, or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), (vi) extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied Expiration Date except as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required or permitted by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share AcceptanceSection 1.01(e).
(cd) On the date the Offer is commenced, Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, file with the United States U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The such Schedule TO shall contain or shall incorporate by reference and the documents included therein pursuant to which the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC ) and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to the holders of Shares, in each case Shares as and to the extent required by applicable federal securities lawsLaw. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Offer Documents to comply as to form in all material respects with the requirements of applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that may be required by applicable Law or reasonably requested by Parent or Merger Sub to be set forth in the Offer Documents. Each of Acquirer and the Company shall parties agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and or misleading in any material respect prior respect, and Parent and Merger Sub further agree to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any written comments (and shall orally describe any oral comments) that Acquirer Parent, Merger Sub or its their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the holders of Shares, or responding to any comments of the SEC with respect to the Offer Documents, Parent and copies of Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any written responses comments provided by the Company. Parent and telephonic notification of Merger Sub shall use reasonable best efforts to respond promptly to any verbal responses by Acquirer or its counselsuch SEC comments.
(de) Prior Subject to the Share Acceptanceterms and conditions set forth in the Offer Documents, there the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 1.01(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been contributed extended pursuant to, and in accordance with, this Section 1.01(e) or as may be required by applicable Law, the time and date to Acquirerwhich the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 1.01(e), the “Expiration Date”). Notwithstanding the foregoing, (i) if, on the then-effective Expiration Date, any of the Offer Conditions have not been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of not more than ten (10) Business Days (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree, in order to permit the satisfaction of the Offer Conditions (it being understood, for the avoidance of doubt, that the Offer shall not be extended pursuant to this clause (i) if all Offer Conditions have been satisfied or waived), and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or necessary to resolve any comments of the SEC or its staff applicable to the Offer or the Offer Documents; provided that (A) in the case of clauses (i) and (ii), Merger Sub shall not in any event be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the Outside Date (as defined in Section 8.01(c) below) and (B) in the case of clause (i), in the event that each Offer Condition (other than the Minimum Condition) shall have been properly satisfied or waived as of any then-effective Expiration Date and the Minimum Condition shall not have been satisfied as of such Expiration Date, then Merger Sub shall not in any event be required to extend the Offer pursuant to clause (i) beyond the date that is twenty (20) business days after such Expiration Date, but may in its sole discretion elect to do so, subject to Section 1.01(e)(A). Nothing in this Section 1.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Company, Parent or Merger Sub to terminate this Agreement pursuant to Section 8.01. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within one (1) Business Day of such termination) terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, prior to the acceptance for payment of Shares tendered and not withdrawn in the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under to the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (Zeneca, Inc.)
The Offer. The obligations of Parent, Hold Co. and Purchaser, and each of them, under this Agreement are primary, binding obligations of each of them as to one another and as to the Company, in all cases jointly and severally, irrespective of any references in this Agreement to obligations of any one or combination of Parent, Hold Co. and Purchaser.
(a) Provided If this Agreement shall not have been terminated in accordance with Section 7.01 its terms and subject to none of the conditions of this Agreement events set forth in Section 6.01 as promptly as practicableParagraphs (a) through (e) of Annex I hereto shall have occurred or be existing, but in no event less later than ten (10) business days after the public announcement of the execution terms of this Agreement, Acquirer the Purchaser shall commence (within the meaning Offer, in accordance with the requirements of Rule 14d-2 Regulations 14D and 14E promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) and any applicable State securities laws, to purchase for cash all of the issued and outstanding Common Shares at a price of $2.25 per Share, for the Offer Price net to the seller thereof in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company taxes); provided, however, that the Purchaser shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to commence the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted practicable after the public announcement of the terms of this Agreement, but in no event later than ten (10) business days after such public announcement. The obligation of Purchaser to do so purchase any Common Shares under applicable lawthis Agreement shall be subject to there being tendered and not withdrawn prior to the Expiration Date (or any subsequent expiration date if the Expiration Date shall be extended as provided for herein) not less than 90% of the outstanding Common Shares of the Company (the "Minimum Purchase").
(b) The Offer shall be made by means expire and terminate on the twentieth (20th) business day from the commencement of an offer to purchase the Offer (the “"Expiration Date") subject to any extension of the Offer required by Applicable Securities Laws to Purchase”disseminate revised Offer Documents pursuant to Section 1(c)-(e) containing of the terms set forth in this Agreement and Agreement; provided, however, that the Purchaser shall extend the Expiration Date up to the maximum period permitted by law, to satisfy any of the conditions set forth in Section 6.01 hereto and providing for an initial expiration date Annex I hereto, provided that (i) the “Expiration Date”failure of such conditions to be satisfied is not due to a breach of this Agreement by the Company, which term breach cannot be cured within a reasonable time and (ii) Purchaser reasonably believes that such extensions are necessary to satisfy the conditions set forth in Annex I, but notwithstanding the foregoing, the Purchaser shall also indicate any later date not be required to which extend the Offer is extended Expiration Date beyond ten (10) business days.
(c) If this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (e) of Annex I hereto shall have occurred or be existing, no later than ten (10) business days after the public announcement of the terms of this Agreement, the Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule TO with respect to the Offer, the Merger and the other transactions contemplated thereby (together with any supplements or amendments thereto, the "Offer Documents"), containing (as exhibits) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the holders of Common Shares with respect to the Offer, and which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the terms and subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall file the Tender Offer Statement on Schedule TO as soon as practicable, but in no event later than ten (10) business days after such public announcement. The Company and its advisors shall be given an opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC, and the Purchaser shall consider such comments in good faith. Purchaser agrees to provide the Company and its counsel any comments which Purchaser or its counsel may receive from the Staff or the SEC with respect to the Offer Documents promptly after receipt thereof.
(d) The obligation of Purchaser to accept for payment or pay for any Common Shares tendered pursuant to the Offer will be subject only to the satisfaction or waiver (to the extent permitted by this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without Annex I hereto. Without the prior written consent of the Company, authorized the Purchaser shall not (i) purchase any Common Shares unless such purchases (by themselves or in combination with prior purchases) constitute more than 50% of the Special Committee. Acquirer shall outstanding Common Shares (which will not require ii) decrease the price per Common Share or change the form of consideration payable in the Offer, (iii) decrease the number of Common Shares sought to be purchased in the Offer, or (iv) change the conditions set forth in Annex I, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Common Shares; provided, however, the Purchaser expressly reserves the right to waive any condition to the Offer without the consent of the Company), (A) extend . Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of all of the conditions of the Offer set forth in Annex I hereto as of any expiration date, Purchaser will accept for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) payment and (B) if, on the Expiration Date, the number of pay for all Common Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent as soon as practicable after such Expiration Date (85%the time of such purchase being referred to herein as the "Offer Purchase Closing").
(e) Subject to Section 8.01, if any of the Shares that conditions set forth in Annex I hereto are outstanding and not held by any member of a Filing Group (determined on a fully diluted basissatisfied or, after giving effect to the exercise or conversion of all optionsextent permitted by this Agreement, rights and securities exercisable or convertible into voting securities waived by the Purchaser as of the CompanyExpiration Date (or any subsequently scheduled expiration date), Purchaser may extend the Offer from time to time, including a subsequent offering period pursuant to Rule 14d-11. In each such instance, Purchaser may extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended shortest time periods permitted by law and to the extent required by law in connection with that Purchaser reasonably believes such increase, in each case without extensions are necessary until the consent of the Company, and (B) Acquirer may, under the terms consummation of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 . Each of the Exchange Act following parties hereto shall use its reasonable best efforts to cause all conditions precedent set forth in Annex I to be fulfilled and avoid the Share Acceptanceoccurrence of any event or to cure any event which may prevent such conditions precedent set forth in Annex I from being fulfilled (it being understood that notwithstanding the satisfaction of the conditions set forth in Annex I hereto, the Purchaser shall have the right to extend the Offer for as long as such Offer may remain open under applicable state and federal law).
(cf) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, Applicable Securities Laws on the date such Offer Documents are filed with the SEC and on SEC. On the date first published, sent or given to the Company’s stockholders's shareholders, the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be is made by Acquirer the Purchaser Group with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Hold Co. and the Company shall Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and or misleading in any material respect prior respect; and the Purchaser Group and each of them further agrees to the Expiration Date and Acquirer further shall 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 Sharesthe Company's shareholders, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel Applicable Securities Laws.
(g) Purchaser shall be given an opportunity to review and comment upon terminate the Offer Documents (and shall provide any comments thereon as soon as practicable) prior practicable following termination of this Agreement pursuant to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt Section 8.01 of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselthis Agreement.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.01, Merger Sub shall, and subject to the conditions of this Agreement set forth in Section 6.01 Parent shall cause Merger Sub to, as promptly as practicable, but practicable after the Agreement Date (and in any event no event less later than ten (10) business days Business Days after the date of the initial public announcement of the execution of this Agreement), Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer () the “Offer”) Offer to purchase for cash any and all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. .
(b) The Company shall not tender Shares held by it or any obligation of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01Merger Sub to, and of Parent to its rights to extend the Offer under Section 1.01(b)cause Merger Sub to, accept for payment and pay for any Shares tendered pursuant to the Offer is subject only to the satisfaction or waiver (as soon as it is legally permitted to do so under applicable law.
(bprovided in Section 1.01(c) The Offer shall be made by means below) of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date Annex I (the “Expiration DateOffer Conditions”, which term shall also indicate any later date ). On the terms and subject to which the conditions of the Offer is extended in accordance with and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) of twenty (20) business days as soon as practicable after the Expiration Date (as defined in Rule 14d-1 under Section 1.01(e) below) and in compliance with applicable Law (as defined in Section 4.12(a) below). The acceptance for payment of Shares pursuant to and subject to the Exchange Act) from conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Closing occurs is referred to in this Agreement as the “Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub on or prior to the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Closing funds necessary to purchase and pay for any and all Shares sought in the Offer, amend the conditions that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer set forth in Section 6.01 or impose conditions and this Agreement.
(c) Parent and Merger Sub expressly reserve the right to waive any of the Offer in addition to those set forth in Section 6.01, without Conditions other than the Minimum Condition (which Minimum Condition may be waived by Parent and Merger Sub only with the prior written consent of the Company), authorized and to increase the Offer Price or to make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided that, unless otherwise expressly provided in this Agreement or previously approved by the Special Committee. Acquirer Company in writing, Parent and Merger Sub shall not: (which will not require i) decrease the consent Offer Price or change the form of consideration payable in the Company)Offer, (Aii) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, decrease the number of Shares validly tendered and not withdrawn pursuant sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer is less than eighty-five percent Conditions or amend any Offer Condition, (85%iv) waive or amend the Minimum Condition, (v) amend any other term of the Shares Offer in a manner that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect is adverse to the exercise holders of Shares, or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), (vi) extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied Expiration Date except as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required or permitted by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share AcceptanceSection 1.01(e).
(cd) On the date the Offer is commenced, Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, file with the United States U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The such Schedule TO shall contain or shall incorporate by reference and the documents included therein pursuant to which the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC ) and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to the holders of Shares, in each case Shares as and to the extent required by applicable federal securities lawsLaw. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Offer Documents to comply as to form in all material respects with the requirements of applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that may be required by applicable Law or reasonably requested by Parent or Merger Sub to be set forth in the Offer Documents. Each of Acquirer and the Company shall parties agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and or misleading in any material respect prior respect, and Parent and Merger Sub further agree to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any written comments (and shall orally describe any oral comments) that Acquirer Parent, Merger Sub or its their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the holders of Shares, or responding to any comments of the SEC with respect to the Offer Documents, Parent and copies of Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any written responses comments provided by the Company. Parent and telephonic notification of Merger Sub shall use reasonable best efforts to respond promptly to any verbal responses by Acquirer or its counselsuch SEC comments.
(de) Prior Subject to the Share Acceptanceterms and conditions set forth in the Offer Documents, there the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 1.01(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been contributed extended pursuant to, and in accordance with, this Section 1.01(e) or as may be required by applicable Law, the time and date to Acquirerwhich the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 1.01(e), the “Expiration Date”). Notwithstanding the foregoing, (i) if, on the then-effective Expiration Date, any of the Offer Conditions have not been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of not more than ten (10) Business Days (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree, in order to permit the satisfaction of the Offer Conditions (it being understood, for the avoidance of doubt, that the Offer shall not be extended pursuant to this clause (i) if all Offer Conditions have been satisfied or waived), and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or necessary to resolve any comments of the SEC or its staff applicable to the Offer or the Offer Documents; provided that (A) in the case of clauses (i) and (ii), Merger Sub shall not in any event be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the Outside Date (as defined in Section 8.01(c) below) and (B) in the case of clause (i), in the event that each Offer Condition (other than the Minimum Condition) shall have been properly satisfied or waived as of any then-effective Expiration Date and the Minimum Condition shall not have been satisfied as of such Expiration Date, then Merger Sub shall not in any event be required to extend the Offer pursuant to clause (i) beyond the date that is twenty (20) business days after such Expiration Date, but may in its sole discretion elect to do so, subject to Section 1.01(e)(A). Nothing in this Section 1.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Company, Parent or Merger Sub to terminate this Agreement pursuant to Section 8.01. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within one (1) Business Day of such termination) terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, prior to the acceptance for payment of Shares tendered and not withdrawn in the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under to the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (ZS Pharma, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.01 and provided further that the Company is prepared (in accordance with Section 1.02(a)), to file with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9 on the same date as Merger Sub commences the Offer, subject to the terms and conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10) 11 business days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A hereto (the “Offer Conditions”). The initial expiration date of the Offer shall be at the time that is one minute following 11:59 p.m., Eastern time, on the date that is 20 business days (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer () after the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) first commenced (within the meaning of twenty (20) business days (as defined in Rule 14d-1 14d-2 promulgated under the Exchange Act) from ). Merger Sub expressly reserves the date right to waive, in its sole discretion, in whole or in part, any Offer Condition or modify the terms of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01any manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, authorized by Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require ii) reduce the consent Offer Price, (iii) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in this Section 1.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vi) change the form or terms of consideration payable in the Offer, (vii) otherwise amend, modify or supplement any of the Company)terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more consecutive increments of not more than ten business days each (or for such periodslonger period as may be agreed to by Parent and the Company), if any, to satisfy at the scheduled expiration date of the Offer any such condition that has of the Offer Conditions (other than the Minimum Tender Condition) shall not by then have been satisfied (or waived, until such time as such conditions shall have been satisfied or waived by Acquirer in its discretion to (irrespective of whether the extent permitted by Section 6.03Minimum Tender Condition has been satisfied) and (B) ifextend the Offer for the minimum period required by any rule, on regulation or interpretation or position of the Expiration Date, SEC or the number of Shares validly tendered and not withdrawn pursuant staff thereof or The Nasdaq Global Market (“Nasdaq”) applicable to the Offer; provided that Merger Sub shall not be required to extend the Offer is less than eighty-five percent (85%) beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Shares that are outstanding Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not held have been satisfied, Merger Sub may elect to (and if so requested by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company, Merger Sub shall, and Parent shall cause Merger Sub to), extend the Offer for up one or more consecutive increments of such duration as requested by the Company but not more than ten business days each (or for such longer period as may be agreed to ten (10) business daysby Parent and the Company); provided that the Company shall not request Merger Sub to, notwithstanding and Parent shall not be required to cause Merger Sub to, extend the Offer pursuant to this sentence on more than three occasions; provided, further, that all Merger Sub shall not, and shall not be required to extend the Offer beyond the Outside Date. On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer were satisfied that Merger Sub becomes obligated to purchase pursuant to the Offer as promptly as practicable after the expiration of the date such extension. In addition, Offer (A) which shall be the next business day after the expiration of the Offer Price absent extenuating circumstances) and, in any event, no more than three business days after the expiration of the Offer. The time at which Merger Sub first irrevocably accepts for purchase the shares of Company Common Stock tendered in the Offer is referred to as the “Offer Closing Time”. The Offer may not be terminated or withdrawn prior to its expiration date (as such expiration date may be increasedextended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in which event accordance with Section 8.01. If this Agreement is validly terminated in accordance with Section 8.01, Merger Sub shall promptly terminate the Offer and return, and shall be extended cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the extent required by law registered holders thereof. Nothing contained in connection with such increase, this Section 1.01(a) shall affect any termination rights set forth in each case without Section 8.01.
(b) As promptly as reasonably practicable on the consent date of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up to ten Parent and Merger Sub shall (10i) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer include an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A hereto (the “such Schedule TO, as amended from time to time, and the documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC ) and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause (ii) disseminate the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case Company Common Stock as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall 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 Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior respect, and to the Expiration Date correct any material omissions therefrom, and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Acquirer Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except from and after an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC or its staff with respect to the Offer Documents, Parent and copies of Merger Sub shall (x) provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (it being understood that the Company and its counsel shall provide any written responses comments thereon as soon as reasonably practicable) and telephonic notification of (y) give reasonable and good faith consideration to any verbal responses comments made by Acquirer the Company or its counsel. Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Prior to If, between the Share Acceptancedate of this Agreement and the Offer Closing Time, there the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)be appropriately adjusted.
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement set forth Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, use commercially reasonable efforts to commence within three (3) Business Days (and in Section 6.01 as promptly as practicableany event Merger Sub shall, but in no event less than and Parent shall cause Merger Sub to, commence within ten (10) business days after Business Days), the public announcement of the execution of this Agreement, Acquirer shall commence (Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit C as such conditions may be modified in accordance with the express terms of this Agreement. The initial expiration date of the Offer shall be midnight (New York City time) on the twentieth (20th) business day following commencement of the Offer (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right in its sole discretion to waive, an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Sharein whole or in part, net any condition to the seller in cash (such price, Offer or such other price per Share as may be paid in modify the terms of the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized Merger Sub shall not (i) reduce the number of shares of the Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) waive or amend the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit C or modify any condition set forth in Exhibit C in any manner adverse to the holders of the Company Common Stock, (v) except as otherwise provided in this Section 1.01(a), extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) otherwise amend the Offer in any manner adverse to the holders of the Company Common Stock. The parties hereto agree to cooperate in good faith to modify the terms of the Offer as and if required by the Special CommitteeSEC. Acquirer Notwithstanding any provision of this Agreement to the contrary, Merger Sub shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessaryminimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with its terms, if at the otherwise scheduled expiration date of the Offer any condition to the Offer is not satisfied, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one (1) or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be agreed by the Company); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. Upon the mutual written consent of the parties hereto, each in its sole discretion, Merger Sub shall extend the Offer on one or more such periods, if any, to satisfy any such condition that has occasions for an aggregate period of not by then been satisfied more than ten (or waived by Acquirer in its discretion 10) Business Days each to the extent permitted by Section 6.03) and (B) ifthat, on such expiration date, all conditions to the Expiration DateOffer are satisfied but the shares of Company Common Stock that have been validly tendered and not validly withdrawn pursuant to the Offer, considered together with all other shares of Company Common Stock owned by Parent and its subsidiaries, shall constitute less than ninety percent (90%) of the outstanding shares of Company Common Stock. If all of the conditions set forth in Exhibit C are satisfied but the number of Shares shares of the Company Common Stock that have been validly tendered and not withdrawn pursuant to in the Offer and accepted for payment, together with any shares of the Company Common Stock then owned by Parent or Merger Sub, is less than eighty-five ninety percent (8590%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities shares of the Company)Company Common Stock, extend the Offer for up to ten Merger Sub may in its sole discretion make available one (101) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a or more “subsequent offering period of up to ten (10) business days periods”, in accordance with Rule 14d-11 of the Exchange Act following Act, of not less than ten (10) Business Days and not more than twenty (20) Business Days in the Share Acceptanceaggregate for all subsequent offering periods. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of Tax pursuant to Section 2.02(h)) all shares of the Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer promptly after the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 1.01(a)). Nothing contained in this Section 1.01(a) shall affect any termination rights in Article VIII.
(cb) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Merger Sub shall file with the United States Securities SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange Commission (the “SEC”) Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementshall be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC Parent and on the date first published, sent or given Merger Sub agree 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case shares of the Company Common Stock as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent and Merger Sub for inclusion therein. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior and to the Expiration Date correct any material omissions therein; and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to holders of Sharesthe Company’s stockholders, in each case as and to the extent required by applicable federal Federal securities laws. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing copies of any written comments, and shall inform the Company and its counsel of any oral comments or discussions, that Acquirer Parent, Merger Sub or its their counsel may receive from or engage in with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies or the commencement or occurrence of any written responses such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and telephonic notification of Merger Sub shall provide the Company and its counsel 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 and good faith consideration to any verbal responses comments made by Acquirer the Company or its counsel.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of the Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Prior Merger Sub shall not terminate the Offer prior to any scheduled expiration thereof without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Article VIII. In the event that this Agreement is terminated pursuant to Article VIII prior to any scheduled expiration thereof, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn purchase of shares of the Company Common Stock in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member tendered shares of the Acquirer Group)Company Common Stock to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (Global Defense Technology & Systems, Inc.)
The Offer. (a) Provided this Agreement Purchaser shall, and Parent shall not have been terminated in accordance with Section 7.01 and subject to the conditions of this Agreement set forth in Section 6.01 as promptly as practicablecause Purchaser to, but in no event less than ten (10i) business days after the public announcement of the execution of this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than 10 business days after the execution of this Agreement and (ii) cause the Offer to remain open until the twentieth business day after such commencement of the Offer (the "Initial Expiration Date"). Purchaser shall be obligated, and Parent shall cause Purchaser, to accept for payment and pay for Shares tendered pursuant to the Offer, subject only to the satisfaction of each of the conditions set forth in Annex A hereto (the "Offer Conditions"). At the Company's request, Purchaser will, and Parent shall cause Purchaser to, extend the Offer after the Initial Expiration Date for one or more periods not to exceed an aggregate of 15 business days if the Offer Conditions have not been satisfied at the Initial Expiration Date. Subject to the prior satisfaction of the Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, consummate the Offer in accordance with its terms and accept for payment all Shares tendered and not withdrawn by 9:00 a.m. Eastern time on the next business day after the expiration of the Offer. Purchaser expressly reserves the right to waive any Offer Condition, or 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, that, without the consent of the Company, Purchaser shall not, and Parent shall not permit Purchaser to, (i) decrease the Per Share Amount or change the form of consideration payable in the Offer, (ii) reduce the number of Shares subject to the Offer, (iii) impose conditions to the Offer in addition to the Offer Conditions, (iv) reduce or waive the Minimum Condition (as such term is defined in Annex A hereto), or (v) change the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer for one or more periods of not more than 5 business days each beyond the Initial Expiration Date, if, at any scheduled expiration of the Offer, any of the Offer Conditions shall not be satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer (provided that Purchaser shall keep the Company reasonably informed of Purchaser's or Parent's contact with the SEC or the staff thereof with respect to the Offer). In addition, if, on the Initial Expiration Date, the sole Offer Condition(s) remaining unsatisfied is/are the failure of any waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), to have expired or been terminated and/or the suspensive effect under Section 41 of the German Act Against Restraints on Competition (GWB) (the "German Regulation") to no longer apply, then Purchaser shall, and Parent shall cause Purchaser to, extend the Offer from time to time until the earlier to occur of (i) September 30, 2005 and (ii) the fifth business day after the later to occur of (A) the expiration or termination of the applicable waiting period under the HSR Act and (B) the date that the suspensive effect of the German Regulation shall no longer apply. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Purchaser shall, and Parent shall cause Purchaser to, pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"). Purchaser may extend the Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act of not more than 20 business days to meet the objective that there be validly tendered, in accordance with the terms of the Offer, prior to the expiration of the Offer (as so extended), an offer (the “Offer”) to purchase for cash all and not withdrawn a number of Shares which, together with Shares then beneficially owned by Parent and Purchaser and their direct and indirect subsidiaries, represents at least 90% of the issued and then outstanding Shares at on a price of $2.25 per Share, net Fully Diluted Basis. If the payment equal to the seller Per Share Amount in cash (the "Merger Consideration") is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the 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 pricepayment shall have paid all transfer and other Taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant have established to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction of Purchaser that such Taxes either have been paid or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable laware not applicable.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from On the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) Purchaser and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer Parent shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoexhibits, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”)"Schedule TO") with respect to the Offer. The Offer Documents Schedule TO shall comply in all material respects with the provisions of the Exchange Act, the rules and regulations promulgated thereunder and all other applicable federal securities laws andLaws, on the date filed with the SEC and on the date first published, sent shall contain or given shall incorporate by reference an offer to purchase relating to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit Offer (the "Offer to state any material fact required to be stated therein or necessary in order to make the statements therein, in light Purchase") and forms of the circumstances under which they were maderelated letter of transmittal and any related summary advertisement (the Schedule TO, not misleadingthe Offer to Purchase and such other documents, except that no representation shall be made by Acquirer together with respect all exhibits, supplements and amendments thereto, being referred to information supplied by herein collectively as the "Offer Documents"). Each of Parent, Purchaser and the Company agrees to correct promptly any information provided by it for inclusion use in the Offer Documents. Acquirer Documents that 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 Schedule TO, as so corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent and Purchaser shall give the Company shall promptly correct any information provided by it for use in and its counsel a reasonable opportunity to review and comment on the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be such documents being filed with the SEC and to be or disseminated to holders of Shares, in each case as . Parent and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Purchaser shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any comments that Acquirer Parent, Purchaser or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies of any written responses shall provide the Company and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior counsel with a reasonable opportunity to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn participate in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member response of the Acquirer Group)Parent and Purchaser to such comments.
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 this Agreement, as promptly as practicablereasonably practicable after the date of this Agreement, but in no event less later than seven (7) Business Days after the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer, within the meaning of the applicable rules and regulations of the SEC, to purchase any and all outstanding Shares at a price equal to the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, purchase, accept for payment, and pay for, Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Annex A (the "Offer Conditions").
(b) The initial expiration date of the Offer shall be the twentieth (20th) Business Day following the commencement of the Offer (determined using Exchange Act Rules 14d-1(g)(3) and 14d-2) (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an "Expiration Date"). Notwithstanding the foregoing, if, on the initial Expiration Date or any subsequent Expiration Date, all of the Offer Conditions have not been satisfied or waived, then Merger Sub shall, and Parent shall cause Merger Sub to, subject to the rights of the parties under Article 8, extend (and re-extend) the Offer and its Expiration Date beyond the initial Expiration Date or such subsequent Expiration Date; provided that any such extension shall be in increments determined by Merger Sub of not more than ten (10) business days after Business Days. The Offer may not be terminated prior to its Expiration Date (as such Expiration Date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Article 8. In no event shall Merger Sub extend the public announcement Offer beyond the date that is five (5) Business Days prior to the Walk Away Date without the prior written consent of the execution of this AgreementCompany in its sole discretion. Notwithstanding the foregoing, Acquirer shall commence (within subject to the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all rights of the issued and outstanding Shares at a price of $2.25 per Shareparties under Article 8, net to the seller in cash (such price, or such other price per Share as may be paid in Merger Sub shall extend the Offer, being referred and Parent shall cause Merger Sub to herein as extend the “Offer Price”)Offer, subject to reduction only for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it to the Offer or any of its Subsidiaries period required by any other Law.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. Acquirer Merger Sub shall, on and Parent shall cause Merger Sub to, comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the foregoing, Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions shall have been satisfied or waived.
(d) Merger Sub may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act (each a "Subsequent Offering Period") following the Acceptance Time if (i) Merger Sub shall have complied with all of the conditions of Rule 14d-11 under the Exchange Act and (ii) at the commencement of any Subsequent Offering Period (or extension thereof) the number of Shares owned by Parent, Merger Sub and their respective Subsidiaries (including any Shares beneficially owned by any of the foregoing, including all Shares validly tendered and not properly withdrawn at the Acceptance Time) represent less than 90% of the then outstanding number of Shares; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), Merger Sub shall not be permitted to provide for a Subsequent Offering Period. If immediately following the Acceptance Time, Parent, Merger Sub and their respective Subsidiaries own more than 70% but less than 90% of the Shares outstanding at that time (which shall include (i) shares beneficially owned by Parent, Merger Sub and their respective Subsidiaries, which Shares shall be converted into direct ownership at or prior to the expiration of the Offer by Parent, Merger Sub or their respective Subsidiaries, as the case may be, and (ii) shares validly tendered in the Offer and not properly withdrawn at the Acceptance Time), to the extent requested by the Company, Merger Sub shall provide for, and Parent shall cause Merger Sub to provide for, a Subsequent Offering Period of at least ten (10) Business Days; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), the Company shall not have the right to request Merger Sub to provide for a Subsequent Offering Period. Subject to the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01this Agreement and the Offer, Parent shall cause Merger Sub to, and to its rights to extend the Offer under Section 1.01(b)Merger Sub shall, accept for payment and pay for all Shares validly tendered and not properly withdrawn during such Subsequent Offering Period as soon promptly as it is legally permitted to do so under applicable law.
(bpracticable after any such Shares are tendered during any Subsequent Offering Period and in any event in compliance with Rule 14d-11(c) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act.
(e) from Parent and Merger Sub expressly reserve the date right to waive any of commencement the Offer Conditions, to increase the Offer Price and/or to modify the other terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by the Special Committee. Acquirer Parent and Merger Sub shall (which will not require the consent do any of the Company), following:
(Ai) extend reduce the number of Shares subject to the Offer;
(ii) reduce the Offer for Price;
(iii) change or waive the shortest time periods which it reasonably believes are necessaryMinimum Tender Condition; provided, in one or more such periodshowever, if anythat Parent and Merger Sub may, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion at their sole discretion, waive the Minimum Tender Condition to the extent permitted by Section 6.03(but only to the extent) and (B) if, on the Expiration Date, that the number of Shares validly tendered (including by guaranteed delivery) and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) properly withdrawn, together with any Shares beneficially owned by Parent or any Subsidiary of Parent, equals at least a majority of the Shares that are shares of Company Common Stock outstanding and not held by any member on a fully diluted basis on the date of a Filing Group purchase (determined where "on a fully diluted basis" means the sum of (a) the number of shares of Company Common Stock outstanding on the date of purchase, plus (b) the aggregate number of shares of Company Common Stock issuable upon the conversion, exercise or exchange of all securities issued by the Company or other rights issued or granted by the Company (other than the Rights) that, in each case are outstanding on the date of purchase and that, as of the date of purchase, are convertible into or exercisable or exchangeable for shares of Company Common Stock, excluding in each case any shares of Company Common Stock that are issuable upon the conversion, exercise or exchange of (x) any Convertible Note, (y) any Option that has an exercise price in excess of the Offer Price, or (z) any Option, Restricted Stock Unit or share of Restricted Stock that is not vested as of the date of purchase and would not be vested immediately after and giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities consummation of the CompanyOffer);
(iv) except as provided in Section 1.1(b), extend or otherwise change the Expiration Date, except (A) as required by applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof) or (B) in connection with an increase of the Offer for up to ten Price;
(10v) business days, notwithstanding that all change the conditions form of consideration payable in the Offer;
(vi) impose any condition to the Offer were satisfied as other than the Offer Conditions; or
(vii) otherwise amend, modify or supplement any of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under Conditions or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of the Parent or Merger Sub to consummate the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following Merger or the Share Acceptanceother Transactions.
(cf) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall i) contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively being referred to as the “"Offer Documents”)") and (ii) be in form reasonably satisfactory to the Company. The Company shall as promptly as practicable upon request of Parent, provide Parent and Merger Sub with all information concerning the Company and the Company Subsidiaries and Company stockholders that is required to be included in the Offer Documents. Parent and Merger Sub shall cause the Offer Documents shall to comply in all material respects with the provisions requirements of applicable U.S. federal securities laws Laws and, on the date first filed with the SEC and on the date first published, sent or given to the Company’s stockholdersholders of Shares, shall not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be covenant is made by Acquirer Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent necessary such that it shall have become false and misleading in the Offer Documents do not contain an untrue statement of a material fact or omit to state any material respect prior fact required to be stated therein or necessary in order to make the Expiration Date statements therein, in light of the circumstances under which they are made, not misleading. Each of Parent and Acquirer further Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so corrected amended or supplemented to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLaws. The Company and its counsel shall be given an afforded a reasonable opportunity to review and comment upon the Offer Documents each time before they are filed with the SEC and/or disseminated to holders of Shares (and the Company and its counsel shall provide any comments thereon as soon as reasonably practicable) prior , and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the filing thereof with the SECCompany and its counsel). In addition, Acquirer Parent and Merger Sub shall provide to the Company and its counsel in writing copies of any written comments that Acquirer or its telephonic notification of any oral comments or other communications Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments or other communications, shall consult with the Company and its counsel prior to responding to any such comments or other communications and shall provide the Company with copies of any all written responses and telephonic notification of any verbal oral responses thereto of Parent or Merger Sub or their counsel, provided that Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to participate in the response of Parent and Merger Sub to any such comments or other communications and to provide comments on that response (to which reasonable and good faith consideration shall be given by Acquirer or its counselParent and Merger Sub).
(dg) Prior Unless this Agreement is terminated pursuant to Section 8.1, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Date without the prior written consent of the Company in its sole discretion, except that in the event this Agreement is terminated pursuant to Section 8.1, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn purchase of Shares in the Offer, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares beneficially owned to the tendering stockholders.
(h) The Offer Price shall be adjusted to reflect fully the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock effected by any member the Company in accordance with the terms and conditions of Acquirer this Agreement and occurring (or any member for which a record date is established) after the date of a group that has filed a Schedule 13D under this Agreement and prior to the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except payment by Merger Sub for 1530 the Shares owned by one member of validly tendered and not properly withdrawn in connection with the Acquirer Group)Offer.
Appears in 1 contract
Samples: Merger Agreement (Sepracor Inc /De/)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject to the conditions of this Agreement set forth in Section 6.01 7.1, as promptly as practicable, practicable (but in no event less later than ten seven (107) business days after the public announcement of the execution of this Agreementhereof), Acquirer the Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”), ") ) an offer (the “"Offer”") to purchase for cash all of the issued Shares (and outstanding Shares associated Rights) at a price of $2.25 22.00 per Share, net to the seller in cash (such price, or such other higher price per Share as may be paid in the Offer, being referred to herein as the “"Offer Price”"), subject only to reduction only for any applicable federal back-up withholding the conditions set forth in Annex A hereto; provided, however, that Parent may -------- ------- designate another wholly owned, direct or stock transfer taxes payable by indirect subsidiary of Parent as the bidder (within the meaning of Rule 14d-1(g) under the Exchange Act) in the Offer, in which case reference herein to Purchaser shall be deemed to apply to such sellersubsidiary, as appropriate. The Company shall not tender Shares held by it or by any of its Subsidiaries subsidiaries pursuant to the Offer. Acquirer The Purchaser shall, and Parent shall cause the Purchaser to, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b)Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) . 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 only the conditions set forth in Section 6.01 Annex A hereto and providing for an initial expiration date (the “"Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement") of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of commencement. The Purchaser shall not, and Parent shall cause the Offer. Acquirer shall Purchaser not to, decrease the Offer Price or decrease the number of Shares sought in the Offersought, amend the conditions to the Offer set forth in Section 6.01 Annex A or impose conditions to the Offer in addition to those set forth in Section 6.01Annex A, without the prior written consent of the Company. The Purchaser may, authorized by the Special Committee. Acquirer shall (which will not require without the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, but in no event more than an additional forty (40) days, in one or more such periodsperiods of not more than ten (10) business days, if any, Parent and Purchaser are not in material breach of this Agreement and if any condition to satisfy any the Offer is not satisfied or waived and such condition that has not by then been is reasonably capable of being satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eightyequal at least seventy-five percent (8575%) of the outstanding Shares that are but less than ninety percent (90%) of the outstanding and not held by any member of a Filing Group Shares (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Companyas such term is defined in Annex A), extend the Offer on one occasion for up to ten (10) business days, days notwithstanding that all the conditions to the Offer were have been satisfied so long as Purchaser irrevocably waives the satisfaction of any of the date conditions to the Offer (other than in the case of paragraph (a) of Annex A hereto the occurrence of any statute, rule, regulation, judgment, order or preliminary or permanent injunction making illegal or prohibiting the consummation of the Offer) that subsequently may not be satisfied during any such extensionextension of the Offer. In addition, (A) the Offer Price may be increased, in which event increased and the Offer shall may be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) . On the date the Offer is commenced, Acquirer Parent and Purchaser shall file with the United States Securities and Exchange Commission (the “"SEC”") a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”"). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “"Offer Documents”"). The Offer Documents shall 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 '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 shall be is made by Acquirer Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer Each of Parent and Purchaser shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent and Purchaser, on the one hand, and the Company Company, on the other hand, shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to and the Expiration Date and Acquirer Purchaser further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents Schedule TO (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer Parent shall, and shall cause the Purchaser to, provide to the Company and its counsel in writing with any comments that Acquirer Parent, Purchaser or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and with copies of any written responses and telephonic notification of any verbal responses by Acquirer Parent, Purchaser or its their counsel.
(d) Prior . Parent shall provide or cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement set forth in Section 6.01 as promptly as practicableAgreement, but in no event less later than ten (10) business days after following the public announcement of the execution date of this Agreement, Acquirer Sub shall, and Parent shall cause Sub to, commence (the Offer within the meaning of Rule 14d-2 under the applicable rules and regulations of the Securities and Exchange Act of 1934, as amended Commission (the “Exchange Act”"SEC"); provided, an offer (however, that the “Offer”) obligation of Sub to, and of Parent to purchase cause Sub to accept for cash all payment, and pay for, any shares of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on the terms and Offer is subject to the prior Minimum Tender Condition and the satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 other conditions set forth in Section 6.01 hereto and providing for an Annex I. The initial expiration date of the Offer (the “"Expiration Date”, which term ") shall also indicate any later date to which be the Offer is extended in accordance with this Agreement) of twenty (20) 20th business days (as defined in Rule 14d-1 under day following the Exchange Act) from the date of commencement of the OfferOffer (determined pursuant to Rule 14d-2 promulgated by the SEC). Acquirer shall not decrease Sub expressly reserves the right to modify the terms and conditions of the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions and to the Offer waive any condition set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01Annex I, except that, without the prior written consent of the Company, authorized by Sub shall not (i) reduce the Special Committeenumber of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) reduce or modify the Minimum Tender Condition, (iv) modify or add to the conditions set forth in Annex I in any manner adverse to the holders of Company Common Stock (other than Parent and its subsidiaries), (v) except as provided in the next sentence, extend the Offer or (vi) change the form of consideration payable in the Offer. Acquirer shall (which will not require Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) extend the Offer in increments of not more than ten business days each, if at the scheduled Expiration Date of the Offer any of the conditions to Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived (but in no event, other than the existence of a Company Takeover Proposal, shall Sub be permitted to extend the Offer beyond the 90th business day after the date of this Agreement (the "Outside Date")), (Aii) extend the Offer for any period required by any rule, regulation, interpretation or position of the shortest time periods which it reasonably believes are necessary, in one SEC or more such periodsthe staff thereof applicable to the Offer and (iii) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC) beyond the Outside Date, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, 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 on a fully-diluted basis. Without limiting the right of Sub to extend the Offer, in the event that the Minimum Tender Condition is not satisfied at the scheduled Expiration Date of the Offer, at the request of the Company, Sub shall, and Parent shall cause Sub to, extend the Expiration Date of the Offer in increments of not more than five business days each until the earliest to occur of (w) the satisfaction of the Minimum Tender Condition, (x) the reasonable determination by Parent that the Minimum Tender Condition is not capable of being satisfied on or prior to the Outside Date, (y) the termination of this Agreement in accordance with its terms and (z) the Outside Date. On the terms and upon the prior satisfaction or waiver of the conditions of the Offer set forth in Annex I, (i) Parent shall provide or cause to be provided to Sub, and deposited with the Paying Agent referred to in Section 2.02 on a timely basis, funds necessary to accept for payment, and to pay for, any Shares tendered pursuant to the Offer and (ii) Sub shall, and Parent shall cause Sub to, accept for payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) as soon as practicable after the expiration of the Shares that are outstanding Offer and in any event not held by any member of a Filing Group later than three business days after such expiration.
(determined b) As soon as practicable on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commencedSub shall, Acquirer and Parent shall cause Sub to, file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and any related summary advertisementdocuments (such 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 and supplements thereto, collectively the “"Offer Documents”"). The Company shall cooperate in the preparation of the Offer Documents, and the Company and its counsel will be given a reasonable opportunity to review and comment on the Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date before they are filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsSEC. Each of Acquirer Parent, Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior to the Expiration Date respect, and Acquirer further each of Parent and Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so corrected amended or supplemented to be filed with the SEC and to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any comments that Acquirer Parent, Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies of shall consult with the Company and its counsel prior to responding to any written responses and telephonic notification of any verbal responses by Acquirer or its counselsuch comments.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Merger Agreement (Imagex Com Inc)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 this Agreement, as promptly as practicablereasonably practicable after the date of this Agreement, but in no event less later than ten (10) business calendar days after the public announcement of the execution date of this Agreement, Acquirer Merger Sub shall (and Parent shall cause Merger Sub to) commence (the Offer, within the meaning of Rule 14d-2 under the Securities Exchange Act applicable rules and regulations of 1934the SEC, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash any and all of the issued and outstanding Shares at a price of $2.25 per Share, net equal to the seller Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, purchase, accept for payment, and pay for, Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in cash Annex A (such pricethe "Offer Conditions").
(b) The initial expiration date of the Offer shall be the twentieth (20th) Business Day following the commencement of the Offer (determined using Exchange Act Rules 14d-1(g)(3) and 14d-2). Notwithstanding the foregoing, if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, all of the Offer Conditions have not been satisfied or waived, then Merger Sub shall, subject to the rights of the parties under Article 8, extend (and re-extend) the Offer and its expiration date beyond the initial expiration date or such other price per Share date for one or more periods, until the earlier to occur of (i) a date as of which all of the Offer Conditions, including the Minimum Tender Condition, are satisfied or waived and (ii) the Walk Away Date; provided that any such extension shall be in increments determined by Merger Sub of not more than ten (10) Business Days. Notwithstanding the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by any other Law. The Offer may not be terminated prior to its expiration date (as such expiration date may be paid extended and re-extended in the Offer, being referred to herein as the “Offer Price”accordance with this Agreement), subject unless this Agreement is validly terminated in accordance with Article 8.
(c) Parent shall provide or cause to reduction only for be provided to Merger Sub on a timely basis the funds necessary to purchase any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries that Merger Sub becomes obligated to purchase pursuant to the Offer. Acquirer shall, on the terms Merger Sub shall (and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), Parent shall cause Merger Sub to) accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of all Shares validly tendered and not withdrawn pursuant to the Offer as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions shall have been satisfied or waived.
(d) Merger Sub may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act (each a "Subsequent Offering Period") following the Acceptance Time if at the commencement of any Subsequent Offering Period (or extension thereof) the number of Shares owned by Parent, Merger Sub and their respective Subsidiaries (including any Shares beneficially owned by any of the foregoing) represent less than eighty-five percent (85%) 90% of the then outstanding number of Shares. If immediately following the Acceptance Time, Parent, Merger Sub and their respective Subsidiaries own more than 80% but less than 90% of the Shares outstanding at that are outstanding time (which shall include (i) shares beneficially owned by Parent, Merger Sub and their respective Subsidiaries, and (ii) shares tendered in the Offer and not held withdrawn), to the extent requested by any member the Company, Merger Sub shall provide for a Subsequent Offering Period of a Filing Group at least ten (determined on a fully diluted basis10) Business Days; provided, however, that if the number of Shares issuable upon the exercise of the Top-Up Option would, after giving effect to such exercise and when added to the exercise or conversion number of all optionsShares so owned by the Parent, rights Merger Sub and securities exercisable or convertible into voting securities their respective subsidiaries, represent not less than 90% of the Company)then outstanding number of Shares, extend at the Offer Parent's election, the Merger Sub shall not be required to provide for up to ten (10) business days, notwithstanding that all the conditions such Subsequent Offering Period. Subject to the Offer were satisfied terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered and not withdrawn during such Subsequent Offering Period as of promptly as practicable after any such Shares are tendered during any Subsequent Offering Period and in any event in compliance with Rule 14d-11(c) promulgated under the date such extension. In additionExchange Act.
(e) Parent and Merger Sub expressly reserve the right to waive any condition to the Offer, (A) to increase the Offer Price may be increasedand/or to modify the other terms of the Offer, in which event the Offer shall be extended to the extent required by law in connection with such increaseexcept that, in each case without the consent of the Company, Parent and Merger Sub shall not do any of the following:
(i) reduce the number of Shares subject to the Offer;
(ii) reduce the Offer Price;
(iii) change or waive the Minimum Tender Condition;
(iv) except as provided in Section 1.1(b) and Section 1.1(d), extend or otherwise change the expiration date of the Offer, except (A) as required by applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof) or (B) Acquirer mayin connection with an increase of at least $0.25 per share in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the SEC;
(v) change the form of consideration payable in the Offer;
(vi) amend, under modify or supplement any of the Offer Conditions or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of Parent or Merger Sub to consummate the Offer, provide for a subsequent offering period of up the Merger or the other Transactions; or
(vii) impose any condition to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following Offer other than the Share AcceptanceOffer Conditions.
(cf) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall i) contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively being referred to as the “"Offer Documents”)") and (ii) be in form reasonably satisfactory to the Company. The Company shall promptly upon request of Parent provide Parent with all information concerning the Company that is required to be included in the Offer Documents. Parent and Merger Sub shall cause the Offer Documents shall to comply in all material respects with the provisions requirements of applicable federal securities laws andLaws, on the date first filed with the SEC and on the date first published, sent or given to the Company’s stockholdersholders of Shares, shall and not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be covenant is made by Acquirer Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent necessary such that it shall have become false and misleading in the Offer Documents do not contain an untrue statement of a material fact or omit to state any material respect prior fact required to be stated therein or necessary in order to make the Expiration Date statements therein, in light of the circumstances under which they are made, not misleading. Each of Parent and Acquirer further Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so corrected amended or supplemented to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given an afforded a reasonable opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof before they are filed with the SECSEC and disseminated to holders of Shares. In addition, Acquirer Parent and Merger Sub shall provide to the Company and its counsel in writing copies of any written comments that Acquirer or its telephonic notification of any oral comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, shall consult with the Company and its counsel prior to responding to any such comments and shall provide the Company with copies of any all written responses and telephonic notification of any verbal oral responses by Acquirer thereto of Parent or its Merger Sub or their counsel.
(dg) Prior Unless this Agreement is terminated pursuant to Section 8.1, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled expiration date without the prior written consent of the Company, except that in the event this Agreement is terminated pursuant to Section 8.1, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the Share Acceptancepurchase of Shares in the Offer, there Merger Sub shall have been contributed to Acquirerpromptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the tendering stockholders.
(h) The Offer Price shall have been properly be adjusted to reflect fully the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock occurring (or for which a record date is established) after the date of this Agreement and prior to the payment by Merger Sub for the Shares validly tendered and not withdrawn in connection with the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 as promptly as practicable, but in no event less than ten (10) business days after the public announcement of the execution of this Agreement, Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, as promptly as practicable and in any event no later than fifteen Business Days after the date hereof, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer () the “Offer”) to purchase for cash all of the issued and outstanding Shares Offer at a purchase price of $2.25 26.55 per Share, net to the seller in cash (such price, or such other any higher price per Share as may be offered and paid by Merger Sub in its sole discretion in the Offer, being referred as any such price may be adjusted pursuant to herein as Section 1.01(g), the “Offer Price”).
(b) The initial expiration date of the Offer shall be 11:59 p.m., subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shallNew York City time, on the date that is twenty Business Days following the date on which the Offer is commenced (the “Initial Expiration Date”) (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with the terms and subject conditions set forth herein, the “Expiration Date”).
(c) The obligation of Merger Sub to the prior satisfaction or waiver of the conditions to commence the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted pursuant to do so under applicable law.
(b) The the Offer shall be made subject only to (i) the non-waivable condition that pursuant to the Offer, prior to the Expiration Date, there shall have been validly tendered and not properly withdrawn a number of Shares which constitutes at least a majority of the outstanding Shares (excluding from such calculation any shares held by means the Parent Group, Loews Corporation, a Delaware corporation and the owner of an offer to purchase approximately 90% of the outstanding shares of common stock of Parent (“Loews”), and the directors and executive officers of each of the Company, Merger Sub, Parent and Loews, as of the Acceptance Time) (the “Offer to PurchaseMinimum Condition”) containing and (ii) the terms set forth in this Agreement and the other conditions set forth in Section 6.01 Annex I hereto and providing for an initial expiration date (together with the Minimum Condition, the “Expiration DateOffer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, which term Parent and Merger Sub shall also indicate any later date have the right to which include or exclude for purposes of its determination thereof Shares tendered in the Offer is extended pursuant to guaranteed delivery procedures (provided that if the Company notifies Parent that it reasonably believes that Shares that are subject to guaranteed delivery procedures may not be delivered to Merger Sub in accordance with this Agreement) such guaranteed delivery procedures, then Parent and Merger Sub will not include any such Shares in its determination of twenty (20) business days (as defined in Rule 14d-1 under whether the Exchange Act) from Minimum Condition has been satisfied without the date of commencement prior consent of the Offer. Acquirer shall not decrease Company (acting pursuant to the direction of the Special Committee)).
(d) Merger Sub expressly reserves the right to (i) increase the Offer Price or decrease the number and (ii) waive any of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 Conditions or impose conditions to modify the terms of the Offer in addition to those set forth in Section 6.01(other than the Minimum Condition which shall be non-waivable), except that, without the prior written consent of the Company, authorized Company (provided that such consent has been approved by the Special Committee), Merger Sub shall not, and Parent shall not permit Merger Sub to, do any of the following: (A) decrease the Offer Price, change the form of consideration to be paid in the Offer or decrease the number of Shares subject to the Offer, (B) impose any conditions to the Offer other than the Offer Conditions set forth in Annex I hereto or modify any of the Offer Conditions set forth in Annex I hereto in any manner adverse to the holders of Shares, (C) otherwise amend or modify the Offer in a manner that would materially and adversely affect the holders of Shares, or (D) except as otherwise provided in this Section 1.01(d), extend the Offer. Acquirer shall (which will not require Notwithstanding the foregoing, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub may, without the consent of the CompanyCompany (or the Special Committee), and upon the request of the Company, Merger Sub shall (AI) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more consecutive increments of not more than ten Business Days each (or such periodslonger period as the parties may agree in writing), if any, to satisfy at any such condition that has otherwise scheduled Expiration Date any of the Offer Conditions shall not by then have been satisfied or, if permissible, waived; (or waived by Acquirer in its discretion to the extent permitted by Section 6.03II) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business daysany minimum period required by any rule, notwithstanding that all the conditions to the Offer were satisfied as regulation, interpretation or position of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; or (III) if Shares have been accepted for payment but the number of shares of Common Stock collectively owned by the Parent Group is less than 90% of the shares of Common Stock on a Tender fully-diluted basis (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), provide a “subsequent offering period” (as such term is defined in Rule 14d-1(g)(8) under the Exchange Act) in accordance with Rule 14d-11 of the Exchange Act; provided that Merger Sub may, but shall not be required to, make available a “subsequent offering period” if Merger Sub has exercised the Top Up Option; provided further that in no event shall Merger Sub be required to extend the Offer Statement beyond the Outside Date (as such date may be extended pursuant to Section 8.01(b)(i)). Notwithstanding the foregoing, in the event that all of the Offer Conditions (other than the condition set forth in clause (a) of Annex I hereto) are satisfied or waived as of any otherwise scheduled Expiration Date, Merger Sub, without the prior written consent of the Company (provided that such consent has been approved by the Special Committee), may not extend the Offer for more than ten Business Days.
(e) Promptly following the expiration of the Offer (and any subsequent offering period), subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable, all of the Shares (i) validly tendered and not properly withdrawn pursuant to the Offer and (ii) validly tendered in any subsequent offering period. The time that Merger Sub accepts for payment the Shares tendered pursuant to the Offer is referred to herein as the “Acceptance Time”.
(f) Subject to the terms and conditions of this Agreement, including the Offer Conditions, Parent shall provide or cause to be provided to Merger Sub on Schedule TO a timely basis all funds necessary to purchase any Shares that Merger Sub is obligated to purchase pursuant to Section 1.01(e).
(g) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into shares of Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Stock occurring on or after the date of this Agreement and prior to the Acceptance Time to provide each holder of Shares with the economic effect of the Offer Price per Share.
(h) Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable for Shares accepted for payment in the Offer (or any subsequent offering period) such amounts as Parent or Merger Sub are required to deduct and withhold with respect to the Offer (together with all amendments and supplements thereto and including making of such payment under the exhibits theretoInternal Revenue Code of 1986, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement as amended (the “Schedule TO, the Offer to Purchase and related letter Code”) or any other applicable provision of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”)tax Law. The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to To the extent that it shall have become false amounts are so withheld and misleading in any material respect prior paid over to the Expiration Date and Acquirer further appropriate taxing authority by Parent or Merger Sub, such withheld amounts shall take be treated for all steps necessary to cause the Offer Documents purposes of this Agreement as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and having been paid to the extent required Person in respect of which such deduction and withholding was made by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer Parent or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselMerger Sub.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Merger Agreement (Cna Surety Corp)
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 7.01 10.1 and subject to so long as none of the conditions of this Agreement events or circumstances set forth in Section 6.01 Annex A hereto shall have occurred and be continuing, as promptly as practicable, but practicable and in no any event less than ten (10) within five business days after from the date of public announcement of the execution of this Agreement, Acquirer Parent shall cause Subsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares Offer at a price of $2.25 per Share, net equal to the seller in cash (such price, or such other price per Share as may be paid in Common Stock Price for each share of Company Common Stock. The obligation of Subsidiary to consummate the Offer, being referred to herein as the “Offer Price”), subject accept for payment and to reduction only pay for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The shares of Company shall not tender Shares held by it or any of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on the terms Offer shall be subject solely to those conditions set forth in this Agreement and subject to the prior satisfaction or waiver of Annex A. It is agreed that the conditions to the Offer set forth in Section 6.01Annex A are for the benefit of Subsidiary and may be asserted by Subsidiary regardless of the circumstances giving rise to any such condition (including any action or inaction by Subsidiary not in breach of this Agreement), and Subsidiary expressly reserves the right, in its sole discretion, to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate waive any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01such condition; provided that, without the prior written consent of the Company, authorized by Subsidiary shall not waive the Special Committee. Acquirer Minimum Condition (as defined in Annex A) or the condition set forth in paragraph (g) of Annex A. In accordance with Rule 14e-1(a) promulgated under the Exchange Act, the initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (which will not require determined in accordance with Rule 14d-2 promulgated under the Exchange Act).
(b) Subsidiary expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer, provided, that without the prior written consent of the Company, no modification or change may be made which (i) decreases the Common Stock Price (except as permitted by this Agreement), (Aii) extend changes the form of consideration payable in the Offer for (other than by adding consideration), (iii) changes the shortest time periods which it reasonably believes are necessaryMinimum Condition, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to iv) decreases the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the maximum number of Shares validly tendered and not withdrawn shares of Company Common Stock sought pursuant to the Offer is less than eighty-five percent Offer, (85%v) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all changes the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended a manner adverse to the extent Company or its shareholders or stock option or stock grant holders, or (vi) imposes additional conditions to the Offer. Notwithstanding the foregoing, Subsidiary may (but shall not be required by law in connection with such increaseunder this Agreement or otherwise to), in each case without the consent of the Company, and (Bi) Acquirer mayextend the Offer on one or more occasions for such period as may be determined by Subsidiary in its sole discretion (each such extension period not to exceed ten business days at a time), under if at the terms then-scheduled expiration date of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 Offer any of the Exchange Act following the Share Acceptance.
conditions to Subsidiary’s obligations to accept for payment and pay for shares of Company Common Stock shall not be satisfied or waived, (cii) On the date extend the Offer is commencedfor any period required by any rule, Acquirer shall file with regulation, interpretation or position of the United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer, and (iii) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Condition has been satisfied but less than 80% of the Company Common Stock has been validly tendered and not properly withdrawn. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Subsidiary shall accept for payment and pay for, and Parent shall cause Subsidiary to accept for payment and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. In addition to the foregoing, Subsidiary may in its sole discretion (but shall not be required under this Agreement or otherwise to) provide for a subsequent offering period pursuant to, and on the terms required by, Rule 14d-11 under the Exchange Act.
(c) On the date of commencement of the Offer, Parent and Subsidiary shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference ) with respect to the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall which will comply in all material respects with the provisions of applicable federal securities laws andlaws, on and will contain the date filed with the SEC and on the date first published, sent or given offer to purchase relating to the Company’s stockholdersOffer and forms of related letters of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the “Offer Documents”). Parent 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 deliver copies of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause proposed forms of the Offer Documents to be filed with the SEC and to be disseminated to holders Company as far in advance of Shares, in each case as and to the extent required by applicable federal securities laws. Each commencement of Acquirer the Offer and the Company shall promptly correct filing of any information provided amendments or supplements thereto as is reasonably practicable, but in all events far enough in advance to permit a reasonably expeditious review and comment by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and counsel. Parent shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer Subsidiary, Parent or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. Each of such comments the Company, Parent and copies Subsidiary shall promptly correct any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respect, and Parent and Subsidiary further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the shareholders of any written responses the Company, in each case, as and telephonic notification of any verbal responses to the extent required by Acquirer or its counselapplicable federal securities laws.
(d) Prior The parties understand and agree that the Common Stock Price has been calculated based upon the accuracy of the representation and warranty set forth in Section 5.2 and the Company’s compliance with the covenant in Section 7.2(a)(v)(B) and that, in the event the number of outstanding shares of Company Common Stock or the number of shares of Company Common Stock issuable upon the exercise or conversion of, or subject to, options, grants, warrants, securities or other agreements exceeds the amounts specifically set forth in Section 5.2 (including without limitation as a result of any stock split, stock dividend, including any dividend or distribution of securities convertible into shares of the Company Common Stock, recapitalization, or other like change occurring after the date of this Agreement) or the number of Options and exercise prices therefore set forth in Schedule 5.2 of the Company Disclosure Schedule are inaccurately stated, in any manner adverse to Parent or Subsidiary, the Common Stock Price shall be appropriately adjusted downward pro rata but only to the Share Acceptanceextent required so that the aggregate consideration payable by Subsidiary hereunder shall not be increased solely by reason of such inaccuracy, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn except that in the Offer, all Shares beneficially owned by any member event of Acquirer or any member of a group that has filed a Schedule 13D under inaccuracies in the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).representations in
Appears in 1 contract
Samples: Merger Agreement (Hunt Corp)
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.01 and subject to that none of the conditions of this Agreement events set forth in Section 6.01 paragraphs (a) through (c) of clause (iv) of Annex A shall have occurred and be continuing, as promptly as practicable, but practicable and in any event no event less more than ten six (106) business days Business Days after the public announcement of the execution date of this Agreement, Acquirer Offeror shall, and Parent shall commence (cause Offeror to, commence, within the meaning of Rule 14d-2 l4d-2 under the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver The obligation of the conditions to the Offer set forth in Section 6.01Offeror to, and of Parent to its rights to extend the Offer under Section 1.01(b)cause Offeror to, accept for payment and pay for Shares any shares of Company Common Stock tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means subject only to the satisfaction of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date Annex A (the “Expiration DateTender Offer Conditions”, which term shall also indicate any later date to which ) and the procedural and customary terms set forth in the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under Documents; provided that Parent and Offeror may, without the Exchange Act) from the date of commencement consent of the Offer. Acquirer shall not decrease Company (but, for the avoidance of doubt, subject to Sections 1.01(c) and 1.01(d)), increase the Offer Price or decrease and waive any of the number Tender Offer Conditions (other than the Minimum Tender Condition, which may not be waived without the prior written consent of Shares sought the Company) and make changes in the Offer, amend the terms and conditions to of the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by neither Offeror nor Parent may change the Special Committee. Acquirer shall (which will not require the consent form of the Company)consideration to be paid, (A) extend decrease the Offer for the shortest time periods which it reasonably believes are necessary, in one Price or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant shares of Company Common Stock sought to be purchased in the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basisOffer, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the impose additional conditions to the Offer were satisfied as of Offer, reduce the date such extension. In addition, (A) the Offer Price may be increased, in time period during which event the Offer shall be extended remain open, or modify any of the Tender Offer Conditions or amend any other term of the Offer in any manner adverse to the extent required by law in connection with such increase, in each case without the consent holders of the Company, and (B) Acquirer may, under shares of Company Common Stock. The Company agrees that no shares of Company Common Stock held by the terms Company or any of its Subsidiaries will be tendered in the Offer, provide for a subsequent offering period of up to ten .
(10b) business days Provided that this Agreement shall not have been terminated in accordance with Rule 14d-11 Section 8.01 and that none of the Exchange Act following the Share Acceptance.
events described in paragraphs (a) through (c) On of clause (iv) of Annex A shall have occurred and be continuing, as promptly as practicable and in any event no more than six (6) Business Days after the date the Offer is commencedof this Agreement, Acquirer Parent and Offeror shall file with the United States U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect (as amended and supplemented from time to the Offer (together with all amendments and supplements thereto and including the exhibits theretotime, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference ) with respect to the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TOOffer, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents which shall comply in all material respects with the provisions of applicable federal securities laws andLaws, on and shall contain or incorporate by reference the date filed with the SEC and on the date first published, sent or given offer to purchase relating 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 Offer and forms of the circumstances under related letter of transmittal and summary advertisement other appropriate documents (which they were madedocuments, not misleadingas amended or supplemented from time to time, except that no representation shall be made by Acquirer with respect are referred to information supplied by herein collectively as the Company for inclusion in the “Offer Documents”). Acquirer shall Parent and Offeror further take all steps necessary agree to cause disseminate the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case shares of Company Common Stock as and to the extent required by applicable federal securities lawsLaws. The Company shall promptly provide to Parent and Offeror all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required under the Exchange Act or reasonably requested in connection with any action contemplated by this Section 1.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents, and Parent and Offeror shall give reasonable and good faith consideration to any comments made by the Company and its counsel prior to their filing with the SEC (it being understood that the Company and its counsel shall provide any comments thereon as soon as practicable). Parent and Offeror agree to provide the Company (in writing, if written), and to consult with the Company and its counsel regarding, any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptly after receipt thereof and any responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses. Each of Acquirer Parent, Offeror and the Company shall agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and or misleading in any material respect prior respect, and Parent and Offeror further agree to the Expiration Date and Acquirer further shall 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 Sharesshares of Company Common Stock, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel Law.
(c) Unless this Agreement shall have been terminated pursuant to Section 8.01, the “initial scheduled expiration date of the Offer” shall be given an opportunity twenty (20) business days (as defined in Rule 14d-1(g)(3) promulgated under the Exchange Act) after (and including the day of) the date of its commencement (such date, or such subsequent date to review and comment upon which the expiration of the Offer Documents (is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Offeror shall provide not, and Parent agrees that it shall cause Offeror not to, terminate or withdraw the Offer other than in connection with the termination of this Agreement in accordance with Section 8.01 hereof; provided that Offeror shall not be required to, and Parent shall not be required to cause Offeror to, extend the Offer beyond the Outside Date. Offeror and Parent may, without receiving the consent of the Company, extend the Expiration Date for any comments thereon as soon as practicable) prior period required by applicable rules and regulations of the SEC, the NASDAQ Global Market or any other stock exchange or automated quotation system applicable to the filing thereof with Offer. Notwithstanding the SECforegoing, Parent and Offeror shall, unless this Agreement shall have been terminated pursuant to Section 8.01, extend the Offer from time to time if at any scheduled Expiration Date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived; provided that such extension shall be for a period that is not more than seven (7) Business Days after such previously scheduled Expiration Date (unless otherwise reasonably agreed by the parties); provided, further, that Offeror shall not be required to, and Parent shall not be required to cause Offeror to, extend the Offer beyond the Outside Date. In additionthe event the Acceptance Date occurs but Parent does not acquire a number of shares of Company Common Stock sufficient to enable a Short Form Merger to occur (assuming exercise of the Top-Up Option in full), Acquirer shall provide to Offeror may, without the Company and its counsel in writing any comments that Acquirer consent of the Company, undertake one or its counsel may receive from the SEC or its staff with respect to more “subsequent offering periods” for the Offer Documents promptly after receipt in accordance with Rule 14d-11 under the Exchange Act for a number of such comments and copies of days to be determined by Parent, which shall be not less than three (3) nor more than twenty (20) Business Days in the aggregate (it being understood that any written responses and telephonic notification of any verbal responses by Acquirer or its counsel“subsequent offering period” shall not extend the Expiration Date).
(d) Prior Subject to the Share Acceptancesatisfaction (or, there to the extent permitted by this Agreement, waiver by Parent or Offeror) of the Tender Offer Conditions, Offeror shall, and Parent shall have been contributed to Acquirercause Offeror to, or shall have been properly immediately accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer (the first date of acceptance for payment and payment, the “Acceptance Date” and the time of acceptance for payment and payment on the Acceptance Date, the “Acceptance Time”) on or after the Expiration Date. If Offeror shall commence a subsequent offering period in connection with the Offer, Offeror shall immediately accept for payment and pay as soon as possible for all Shares beneficially owned by any member additional shares of Acquirer or any member Company Common Stock tendered during such subsequent offering period, subject to and in compliance with the requirements of a group that has filed a Schedule 13D Rule 14d-11(e) under the Exchange Act Act. Parent shall provide or cause to be provided to Offeror on a timely basis the funds necessary to purchase any shares of Company Common Stock that Offeror becomes obligated to purchase pursuant to the Offer.
(a e) Offeror shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986 (the “Filing GroupCode”) ), or under any provision of state, local or foreign Tax Law, and all such amounts shall be treated as having been paid to which Acquirer or any the applicable holder of its members is a signatory (except for 1530 Shares owned by one member shares of the Acquirer Group)Company Common Stock.
Appears in 1 contract
Samples: Merger Agreement (Agrium Inc)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 as promptly as practicableAgreement, but in no event less than within ten (10) business days after the public announcement of the execution date of this Agreement, Acquirer the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on On the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this Agreement, the Purchaser shall accept for payment all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer set forth in Section 6.01, as soon as practicable after the Expiration Date and to its rights to extend shall pay the Offer under Section 1.01(b), Price for all such shares of Company Common Stock as soon as practicable after acceptance and in compliance with applicable laws. The obligation of the Parent and the Purchaser to accept for payment and pay the Offer Price for Shares shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject to the conditions set forth in Annex I to this Agreement (the “Offer Conditions”). The first time that the Purchaser accepts for payment shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer is referred to herein as soon as it is legally permitted to do so under applicable lawthe “Acceptance Time.”
(b) The initial expiration date of the Offer shall be made by means the 20th business day after commencement of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended (determined in accordance with this AgreementRules 14d-1(g)(3) of twenty (20) business days (as defined in Rule 14d-1 and 14d-2 under the Exchange Act) from (such date and the date of commencement of the Offer. Acquirer shall not decrease time on which the Offer Price or decrease expires on such date, the number of Shares sought in “Initial Expiration Date”). The Purchaser expressly reserves the Offerright, subject to compliance with the Exchange Act, to waive, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to modify any term or condition of the Offer in addition to those set forth in Section 6.01its sole discretion; provided, however, that, without the prior written consent of the Company, authorized by the Special Committee. Acquirer Purchaser shall not:
(which will not require i) change the consent form of consideration payable in the Company)Offer, decrease the Offer Price or decrease the number of shares of Company Common Stock sought pursuant to the Offer;
(ii) extend the Expiration Date except (A) extend the Offer as required by applicable law (including for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held period required by any member rule, regulation, interpretation or position of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect or the staff thereof), (B) that if, immediately prior to the scheduled Expiration Date, any condition to the Offer (together with all amendments and supplements thereto and including the exhibits theretohas not been satisfied or waived, the “Schedule TO”). The Schedule TO shall contain Purchaser may, in its sole discretion, extend the Expiration Date for one or shall incorporate by reference more periods (not in excess of ten business days each) but in no event later than the Outside Date, or (C) in connection with an increase in the consideration to be paid pursuant to the Offer so as to Purchase comply with applicable rules and a form regulations of letter the SEC; provided, however, that, subject to the right of transmittal the Parent and summary advertisement (the “Schedule TOPurchaser to terminate this Agreement in accordance with Section 9.1, if immediately prior to any scheduled Expiration Date, one or more Offer Conditions have not been satisfied or waived by the Parent or the Purchaser, then at the request of the Company, the Offer Parent shall cause the Purchaser to Purchase extend the Expiration Date for one or (as needed) more consecutive periods of five business days each (or such shorter period as the Company may agree or such longer period as the Company and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary Parent may agree) in order to make permit the statements therein, in light satisfaction of the circumstances under which they were made, not misleadingany such Offer Condition, except that no representation if immediately prior to any scheduled Expiration Date, all Offer Conditions (except the Minimum Condition) have been satisfied or waived by the Parent or the Purchaser, then the Parent’s obligations to extend the Expiration Date shall be made by Acquirer with respect limited to information supplied by causing the Purchaser to extend the Expiration Date for one period of ten business days to permit the satisfaction of the Minimum Condition, and if at the end of such ten business day period, the Minimum Condition continues to not be satisfied, to causing the Purchaser to extend the Expiration Date for one additional period of ten business days to permit the satisfaction of the Minimum Condition, after which, if the Minimum Condition remains unsatisfied, the Purchaser shall not be required to extend the Expiration Date (it being understood that, in no event, shall the Parent or the Purchaser be required to extend the Expiration Date to a date that is later than the Outside Date notwithstanding anything to the contrary in this Agreement);
(iii) waive or change the Minimum Condition;
(iv) amend any term of the Offer in any manner materially adverse to the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated or to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each shares of Acquirer and the Company shall promptly correct Common Stock; or
(v) impose any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect condition to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn set forth in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).Annex I.
Appears in 1 contract
The Offer. (a) Provided Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with Section 7.01 its terms pursuant to ARTICLE VII hereof and none of the events set forth in paragraphs (a) through (f) of EXHIBIT A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer 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 pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions of this Agreement set forth in Section 6.01 as promptly as practicable, but in no event less than ten (10) business days after the public announcement EXHIBIT A. The initial expiration date of the execution Offer shall be the 20th business day following the commencement of this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended Offer (the “Exchange Act”), initial "EXPIRATION DATE," and any expiration time and date established pursuant to an offer (the “Offer”) to purchase for cash all authorized extension of the issued Offer as so extended, shall also be defined herein as an "EXPIRATION DATE"). Parent and outstanding Shares at a price of $2.25 per Share, net Merger Sub expressly reserve the right to waive any condition to the seller in cash (such price, Offer or such other price per Share as may be paid in modify the terms of the Offer, being referred to herein as except that, without the “Offer Price”)written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in EXHIBIT A), add to the conditions set forth in EXHIBIT A or modify any condition set forth in EXHIBIT A in any manner adverse to the holders of Company Common Stock, (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 (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Acquirer shallNotwithstanding the foregoing, on Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the prior satisfaction or waiver of the conditions to the Offer that are set forth in Section 6.01this Agreement, and to its rights to extend promptly after the Offer under Section 1.01(b)Expiration Date, either Parent or Merger Sub shall accept for payment and pay for Shares tendered purchase, as soon promptly as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer to purchase (practicable after the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, on which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days Parent or Merger Sub (as defined in Rule 14d-1 under the Exchange Actcase may be) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions first accepts shares for payment pursuant to the Offer set forth in Section 6.01 or impose conditions to (the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company"ACCEPTANCE DATE"), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number all shares of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(85%b) On the date of commencement of the Shares that are outstanding Offer, Parent and not held by any member of a Filing Group (determined on a fully diluted basisMerger Sub shall file with the SEC, after giving effect and cause to be disseminated to the exercise or conversion of all optionsCompany's stockholders, rights as and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increaseapplicable federal securities laws, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”"OFFER DOCUMENTS"). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have originally been or shall become false and or misleading in any material respect prior to the Expiration Date (whether by virtue of a material misstatement, material omission or otherwise), and Acquirer further 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 corrected amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. The Company and its counsel shall be given an reasonable opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the their filing thereof with the SECSEC or dissemination to the stockholders of the Company. In addition, Acquirer Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments that Acquirer (and orally, any oral comments), Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies of shall consult with the Company and its counsel prior to responding to any written responses and telephonic notification of any verbal responses by Acquirer or its counselsuch comments.
(dc) Prior Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
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The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject to Within a reasonable period of time after the conditions date of the execution of this Agreement set forth in Section 6.01 Agreement, Merger Sub shall, as promptly soon as practicable, but in no event less later than ten (10) business days the tenth Business Day after the public announcement of the execution date of this Agreement, Acquirer commence and Parent shall cause Merger Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The obligation of Merger Sub to commence the Offer and to accept for payment, and pay for Company shall not tender Shares held by it or any of its Subsidiaries tendered pursuant to the Offer. Acquirer shall, on the terms and Offer shall be subject to the prior satisfaction or waiver of the (i) those conditions to the Offer set forth in Annex A (any of which may be waived by Merger Sub in its sole discretion; provided, however, that, without the consent of the Company, except as contemplated by Section 6.012.01(e), Merger Sub shall not waive the Minimum Tender Condition), and (ii) the receipt by Merger Sub of a certificate signed by duly authorized officers of the Company (as provided in Annex A(c)(iii)) to its rights the effect that the condition to extend the obligation of the Merger Sub set forth in Annex A(c)(iii) has been satisfied. Subject to the provisions of this Agreement, the Offer under Section 1.01(b)shall initially expire on the twentieth business day from and after the date the Offer is commenced, accept for payment and pay for Shares tendered including the date of the commencement of the Offer as soon as it the first business day in accordance with Rule 14d-2, unless this Agreement is legally permitted to do so under applicable lawterminated in accordance with Article VIII, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (As soon as defined in Rule 14d-1 under the Exchange Act) from practicable on the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) Parent and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer Merger Sub shall file with the United States Securities and Exchange Commission (SEC with respect to the “SEC”) Offer a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule "SCHEDULE TO”"). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall which will comply in all material respects with the provisions of applicable federal securities laws andand will contain an offer to purchase relating to the Offer (the "OFFER TO PURCHASE") and forms of related letters of transmittal and summary advertisement (which documents, on together with any supplements or amendments thereto, are referred to herein collectively as the date filed with "OFFER DOCUMENTS"). Parent and Merger Sub shall make all filings required by applicable state law relating to the Offer (the "STATE FILINGS") as and when required by applicable state law. Parent and Merger Sub will deliver copies of the proposed forms of the Schedule TO, the Offer Documents and the State Filings (as well as any change thereto) to the Company within a reasonable time prior to the commencement of the Offer for prompt review and comment by the Company and its counsel. Parent and Merger Sub will provide the Company and its counsel in writing any comments that Merger Sub, Parent or their counsel may receive from the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain its staff or any untrue statement of a material fact or omit to applicable 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 shall be made by Acquirer authority with respect to the Offer Documents or the State Filings promptly after the receipt thereof. Parent and Merger Sub shall promptly correct any information supplied by the Company for inclusion in the Schedule TO, the Offer Documents. Acquirer Documents or the State Filings that shall further have become false or misleading in any material respect and take all steps necessary to cause the such Schedule TO, Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents or State Filings as so corrected to be filed with the SEC and to be any applicable state authority and disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities lawslaw. The Company Parent and its counsel shall be given an opportunity Merger Sub will provide copies of any amendments or supplements to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) Documents, the Schedule TO or the State Filings prior to the any filing thereof of such amendments or supplements with the SEC. In addition, Acquirer shall SEC or any applicable state authority in order to provide to the Company and its counsel with a reasonable opportunity to review and comment.
(c) Each of Parent and Merger Sub expressly reserves the right to modify the terms of the Offer, except that neither Parent nor Merger Sub shall, without the prior written consent of the Company, (i) decrease the price per Company Shares payable in writing the Offer, (ii) change the form of consideration payable in the Offer, (iii) decrease the number of Company Shares sought pursuant to the Offer (except as contemplated by Section 2.01(e)), (iv) change or modify the conditions to the Offer in a manner adverse to the Company or holders of Company Shares, (v) impose additional conditions to the Offer, or (vi) amend any comments that Acquirer term of the Offer in any manner adverse to the Company or its counsel may receive from holders of Company Shares. So long as this Agreement is in effect and the conditions contained in Annex A have not been satisfied or waived, Parent shall cause Merger Sub to cause the Offer not to expire until 30 Business Days after such time as all of the conditions contained in Annex A have been satisfied or waived, except for the Minimum Tender Condition. Merger Sub may, without the consent of the Company, further extend the Offer, (i) for any period required by any rule, regulation, interpretation or position of the SEC or its the staff with respect thereof applicable to the Offer Documents promptly and (ii) from time to time, for an aggregate period of not more than ten (10) business days (for all such extensions under this clause (ii)) beyond the latest expiration date that would be permitted under the preceding sentence or clause (i) of this sentence. Subject to and in accordance with the terms and conditions of the Offer and this Agreement (but subject to the right of termination in accordance with Article VIII), Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, in accordance with the terms of the Offer, all Company Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after receipt the expiration of such comments and copies the Offer. In addition to the foregoing, Merger Sub may provide for a "subsequent offering period" to the extent provided in Rule 14d-11 under the Exchange Act after the purchase of any written responses and telephonic notification of any verbal responses by Acquirer or its counselCompany Shares pursuant to the Offer.
(d) Prior On or prior to the Share Acceptance, there shall have been contributed date that Merger Sub becomes obligated to Acquirer, or shall have been properly tendered accept for payment and not withdrawn in pay for Company Shares pursuant to the Offer, Parent will provide or cause to be provided to Merger Sub the funds necessary to pay for all Company Shares beneficially owned that Merger Sub becomes obligated to accept for payment and pay for pursuant to the Offer.
(e) Notwithstanding anything to the contrary in this Agreement, Merger Sub may waive the Minimum Tender Condition without the consent of the Company as long as Merger Sub is permitted by any member applicable law to and does exercise the Options (as defined in the Stockholders Agreements) immediately following the consummation of Acquirer or any member the Offer and acquires title to all of the Company Shares subject thereto and as a group that has filed a Schedule 13D result of such exercise and purchase of Shares under the Exchange Act (a “Filing Group”) as to which Acquirer or any Offer, the aggregate amount of its members is a signatory (except for 1530 Company Shares owned acquired by one member of Merger Sub exceeds the Acquirer Group)Minimum Tender Condition.
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The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 ---------- Agreement, as promptly as practicable, but in no event less later than ten (10) five business days after the public announcement of the execution of this AgreementOffer, Acquirer Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any shares of Company shall not tender Shares held by it or any of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer subject to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto Exhibit A (any of which may be waived in whole or in part by Sub in its sole discretion) and providing for an initial expiration date (to the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with terms and conditions of this Agreement) of twenty (20) business days ; provided, however, that Sub shall not, without the Company's consent, -------- ------- waive the Minimum Condition (as defined in Rule 14d-1 under Exhibit A). Sub expressly reserves the Exchange Act) from right to modify the date of commencement terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by Sub shall not (i) reduce the Special Committeenumber of shares of Company Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) amend any other term of the Offer in a manner adverse to the holders of Company Common Stock. Acquirer shall (which will not require Notwithstanding the foregoing, 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 any scheduled expiration date of the Offer, any of the conditions to Sub's obligation to accept for payment, and pay for, shares of Company Common Stock shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the shortest time periods which it reasonably believes are necessary, in one Securities and Exchange Commission (the "SEC") or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion the staff thereof applicable to the extent permitted by Section 6.03) Offer and (Biii) ifextend the Offer for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if there shall not have been tendered sufficient shares of Company Common Stock so that the Merger could be effected as provided in the last sentence of Section 6.01(a). Subject to the terms and conditions of the Offer and this Agreement, on the Expiration DateSub shall, the number and Parent shall cause Sub to, accept for payment, and pay for, all shares of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding Sub becomes obligated to accept for payment, and not held by any member of a Filing Group (determined on a fully diluted basispay for, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions pursuant to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms soon as practicable after expiration of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
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Samples: Tender Offer Statement
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 as promptly as practicable(including ARTICLE VIII), but in no event less than within ten (10) business days Business Days after the public announcement of the execution date of this Agreement, Acquirer Merger Sub shall, and Parent shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer; provided, being referred to herein as that the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable Company agrees that no shares of Company Common Stock owned by such seller. The the Company shall not tender Shares held by it or any of its Subsidiaries Company Subsidiary will be tendered pursuant to the Offer. Acquirer shallThe obligations of Merger Sub to, on the terms and subject of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the prior Offer are subject only to the satisfaction or waiver of the conditions (to the Offer set forth in Section 6.01, and to its rights to extend the Offer extent permitted under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(bthis Agreement) 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 Section 6.01 hereto and providing for an initial expiration date Exhibit A (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended as they may be amended in accordance with this Agreement, the “Offer Conditions”).
(i) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the The initial expiration date of commencement the Offer shall be 5:00 p.m., New York City time, on July 1, 2010. Merger Sub expressly reserves the right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer; provided, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01however, that, without the prior written consent of the Company, authorized by Merger Sub shall not (i) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require ii) reduce the consent Offer Price or change the form of consideration payable in the CompanyOffer, (iii) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (Aiv) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the impose conditions to the Offer were satisfied as that are different than or in addition to the Offer Conditions, or (v) otherwise amend the Offer in any manner materially adverse to the holders of Company Common Stock.
(ii) Notwithstanding anything in this Agreement to the date such extension. In additioncontrary, Merger Sub (A) the Offer Price may be increasedmay, in which event the Offer shall be extended its sole discretion (subject to the extent required by law in connection with such increaseobligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), in each case without the consent of the Company, extend the Offer on one or more occasions in increments of no more than five (5) Business Days, if on any then-scheduled expiration date of the Offer, any of the Offer Conditions shall not be satisfied or, in Merger Sub’s sole discretion, waived (if permitted under this Agreement), until such time as such condition or conditions are satisfied or waived and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date shall extend the Offer is commencedfor any period required by any rule, Acquirer shall file with regulation, interpretation or position of the United States Securities and Exchange Commission (the “SEC”), the staff thereof or the Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer, and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iii) In addition to the extension obligation set forth in Section 1.1(a)(ii)(B), Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, (A) the Minimum Tender Condition is not satisfied, (B) the condition set forth in subsection (v) of Exhibit A is not satisfied, and prior to such expiration the Company did not have at least five (5) days written notice from Parent of the facts or circumstances underlying the failure of such condition, or (C) the condition set forth in subsection (vii) of Exhibit A is not satisfied, but in each case all of the Offer Conditions set forth in Exhibit A other than those described above are satisfied or, in Merger Sub’s sole discretion, waived, then Merger Sub shall, and Parent shall cause Merger Sub to (x) in the case of clause (A) or clause (C) above, on the first such scheduled expiration date, extend the Offer for ten (10) Business Days (the “Initial Extension”), and if on the scheduled expiration date of the Initial Extension the requirements for extension pursuant to clause (A) or clause (C) (as the case may be) continue to be satisfied, further extend the Offer for five (5) Business Days (the “Second Extension”), or (y) in the case of clause (B) above, on the first such scheduled expiration date, extend the Offer for five (5) Business Days; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times in the case of clause (A) or clause (C) (for a Tender period of ten (10) Business Days for the Initial Extension and five (5) Business Days for the Second Extension), or more than one time, for five (5) Business Days, in the case of clause (B), and in no event shall Merger Sub be required to extend the Offer Statement on Schedule TO with respect (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iv) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer (together with all amendments and supplements thereto and including as soon as practicable after the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference expiration date of the Offer to Purchase (as it may be extended and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together re-extended in accordance with any amendments and supplements thereto, collectively the “Offer Documents”this Section 1.1(a)). The Offer Documents Price payable in respect of each share of Company Common Stock pursuant to the preceding sentence shall comply be paid net to the seller in all material respects with the provisions of applicable federal securities laws andcash, without interest, on the date filed with terms and subject to the SEC conditions of this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and on subject to the conditions of the Offer upon the expiration of the Offer is referred to in this Agreement as the “Offer Closing,” and the date first published, sent or given on which the Offer Closing occurs is referred to in this Agreement as 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 “Offer Closing Date.” Merger Sub expressly reserves the statements thereinright to, in light of the circumstances under which they were madeits sole discretion, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion in following the Offer Documents. Acquirer shall further take all steps necessary to cause Closing, extend the Offer Documents to be filed for a “subsequent offering period” in accordance with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D Rule 14d-11 under the Exchange Act Act; provided, however such period (a “Filing Group”including any extensions thereof) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).shall not
Appears in 1 contract
Samples: Merger Agreement (Endo Pharmaceuticals Holdings Inc)
The Offer. (a) Provided this The Merger Agreement shall not have been terminated in accordance with Section 7.01 and subject provided for the commencement of the Offer no later than April 5, 2010. Subject to the conditions applicable rules and regulations of this Agreement the SEC, Intersil expressly reserves the right from time to time, except as set forth elsewhere in Section 6.01 as promptly as practicablethis Offer to Purchase, but in no event less than ten (10) business days after the public announcement of the execution of this Agreementits sole discretion, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net waive any condition to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred increase the Per Share Amount or to herein as the “Offer Price”), subject to reduction only for make any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on other changes in the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall However, we have agreed in the Merger Agreement that, without the consent of the Company, we will not (i) waive satisfaction of the Minimum Condition; (ii) waive any condition relating to (a) a waiting period applicable to the Offer or the Merger under the HSR Act or any other antitrust, competition or merger control laws or related legal requirements, (b) legal proceedings by any governmental body of competent jurisdiction that seek to restrain, enjoin or otherwise prohibit the making or consummation of the Offer or the Merger or (c) enactment, amendment or enforcement of any legal requirement that would result in a legal proceeding of the type described in clause (b), in each case if any such waiver would be reasonably likely to result in personal liability to any director, officer, or employee of any party to the Merger Agreement; (iii) decrease the Offer Price Per Share Amount or change the form of consideration payable in the Offer; (iv) decrease the maximum number of Shares sought to be purchased in the Offer, ; (v) impose additional conditions to the Offer; (vi) amend the conditions to the Offer set forth in Section 6.01 or impose conditions 15 — “Conditions to the Offer” in any manner adverse to the holders of Shares; or (vii) except as provided in the Merger Agreement, extend or otherwise change the expiration date of the Offer. There is no financing condition to the Offer. The Merger Agreement provides that unless the Merger Agreement is terminated in accordance with its terms, we (i) will extend the Offer in addition from time to those time if (A) any condition to our obligation to purchase Shares set forth in Section 6.0115 — “Conditions to the Offer” is not satisfied (or, without in accordance with the prior written consent Merger Agreement, waived by Intersil or Purchaser) on or before the Expiration Date; or (B) if any applicable law, rule, regulation, interpretation or position of the Company, authorized by SEC or the Special Committee. Acquirer shall SEC Staff applicable to the Offer requires such extension; (which ii) will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-immediately preceding clause (i) for consecutive periods of up to five percent business days each (85%) of the Shares that are outstanding and not held or for such period as may be required by any member of a Filing Group (determined on a fully diluted basisapplicable law, after giving effect rule, regulation, interpretation or position); provided, however, that Purchaser shall not be required to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer beyond July 20, 2010 (the “Outside Date”); and (iii) will extend the Expiration Date for up any period required by the rules and regulations of the SEC or the NASDAQ Stock Market applicable to ten (10) business daysthe Offer, notwithstanding that including in connection with an increase in the Per Share Amount. However, we will not extend the Offer if all of the conditions to the Offer were are satisfied as of the date such extensionor waived and we are permitted under applicable law to accept for payment and pay for validly tendered Shares that are not properly withdrawn. In addition, (A) the Merger Agreement provides that if the Shares we acquire in the Offer Price may be increased(together with Xxxxxx owned of record by Intersil, the Purchaser and their direct and indirect subsidiaries) represent less than 90% of Table of Contents the then-outstanding Shares, we may, in which event our sole discretion, extend the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) three to 20 business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)Act.
Appears in 1 contract
Samples: Offer to Purchase (Intersil Corp/De)
The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Section 7.01 Article VIII and subject to none of the conditions in paragraphs (c) through (e) of this Agreement set forth in Section 6.01 Exhibit A is existing, as promptly as practicable, but in no event less than ten (10) business days reasonably practicable after the public announcement of the execution of this Agreementdate hereof, Acquirer and in any event within five (5) Business Days after such date, 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 (including the rules and regulations promulgated thereunder, the “Exchange Act”), ) an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any obligations of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01Merger Sub, and of Parent to its rights cause Merger Sub, to extend the Offer under Section 1.01(b), accept for payment and pay for any Shares tendered as soon as it is legally permitted pursuant to do so under applicable law.
(b) The the Offer shall be made subject to the satisfaction or waiver by means Merger Sub of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 Exhibit A hereto and providing for an initial expiration date (the “Expiration DateOffer Conditions”) and the terms and conditions hereof. Merger Sub may, which term shall also indicate in its sole discretion, waive any later date to which Offer Condition or modify the terms of the Offer is extended in accordance consistent with the terms of this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized Merger Sub shall not (i) reduce the Offer Price, (ii) change the form of consideration payable in the Offer (other than by the Special Committee. Acquirer shall (which will not require the consent of the Companyadding consideration), (iii) reduce the number of Shares subject to the Offer, (iv) waive or change the Minimum Condition (as defined in Exhibit A) or the condition set forth in clause (d) of Exhibit A, (v) add to the Offer Conditions or modify them in a manner adverse to the holders of Shares, (vi) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (vii) modify any Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the holders of Shares.
(b) The Offer shall expire at 12:00 midnight, New York City time, at the end of the date that is twenty (20) business days (for purposes of this Section 1.1(b), business days shall be calculated in accordance with Section 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer, except as may otherwise be required by applicable Law (as defined in Section 4.4(a) hereof); provided, however, that if at any scheduled expiration date of the Offer (including any extension thereof), (i) the Offer Conditions have not been satisfied or waived, then until such time as the Offer Conditions have been satisfied or waived, Merger Sub shall extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or (as needed) more such periods, if any, to satisfy any such condition that has not by then been satisfied additional consecutive periods of ten (10) business days or waived by Acquirer (ii) the Outstanding Liabilities (as defined in its discretion to the extent permitted by Section 6.031.1(d) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%hereof) of the Shares that are outstanding and not held by any member Company exceeds the then-applicable Liabilities Threshold (as defined in Section 1.1(d) hereof), then, at the election of a Filing Group Merger Sub (determined which election shall be made no later than 9:00 a.m. New York City time on a fully diluted basissuch scheduled expiration date of the Offer), after giving effect (x) the Offer Price shall be adjusted, on such scheduled expiration date of the Offer, pursuant to Section 1.1(d) hereof, (y) Merger Sub shall, on such scheduled expiration date of the Offer, provide notice of such adjustment to the exercise Company’s stockholders pursuant to and in compliance with Rule 14e-1(b) under the Exchange Act and any other applicable rules or conversion of all options, rights and securities exercisable or convertible into voting securities regulations of the Company), SEC or other applicable Law and (z) Merger Sub shall extend the Offer for up to an additional period of ten (10) business days, but, notwithstanding that all the conditions to clauses (i) and (ii) of this paragraph, in no event shall the Offer were satisfied as remain open after 120 days from commencement thereof (the “Outside Date”); provided, further, that Merger Sub shall also extend the Offer for any additional period required by any rule, regulation, interpretation or position of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) or the staff thereof or the rules of the Nasdaq Stock Market applicable to the Offer; provided, further, that Merger Sub may, in its sole discretion, provide a Tender subsequent offering period (a “Subsequent Offering Period”) after the expiration of the Offer, in accordance with Rule 14d-11 under the Exchange Act.
(c) Subject to the terms of the Offer Statement on Schedule TO with respect and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub will accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the expiration date thereof (together with all amendments and supplements thereto and including as the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain same may be extended or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein extended) 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion (in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders case of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in Shares tendered during any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon Subsequent Offering Period) as soon as practicable) prior to practicable following the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselvalid tender thereof.
(d) Prior In the event of an adjustment pursuant to Section 1.1(b)(ii)(x) on a scheduled expiration date of the Offer (each, an “Adjustment Date”), (i) the Offer Price for purposes of this Agreement shall thereafter be equal to $1.90 net to the Share Acceptance, there shall have been contributed selling Company stockholders in cash less an amount equal to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member quotient of Acquirer or any member of a group that has filed a Schedule 13D under (A) the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member excess of the Acquirer GroupOutstanding Liabilities on the Adjustment Date over $85,000,000 divided by (B) the sum of the number of issued and outstanding Shares (including for this purpose any vested or unvested restricted stock) on the Adjustment Date plus the number of Shares issuable pursuant to Company derivatives (whether or not vested) that would be in-the-money based on the new Offer Price calculated pursuant to this clause (i)., and (ii) the Liabilities Threshold for purposes of this Agreement shall be thereafter be equal to the Liabilities Threshold as of such Adjustment Date plus the amount of Excess Liabilities as of such Adjustment Date plus $5,000,000. For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Ashworth Inc)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, but in no event less later than ten (10) five business days after the public announcement date of the execution and delivery of this Agreement, Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence (the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"). The obligation of Merger Sub to, an offer and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in --------- its sole discretion, provided that, without the “Offer”) to purchase for cash all consent of the issued Company, Merger Sub may not waive the Minimum Tender Condition (as defined in Exhibit A)) and outstanding Shares at a price to --------- the other conditions in this Agreement. The initial expiration date of $2.25 per Share, net the Offer shall be the 20th business day following the commencement of the Offer. Merger Sub expressly reserves the right to modify the seller in cash (such price, or such other price per Share as may be paid in terms of the Offer, being referred to herein except that, without the consent of the Company, Merger Sub shall not, except as provided in the “Offer Price”), next sentence: (i) reduce the number of shares of Company Common Stock subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The the Offer; (ii) reduce the price per share of Company shall not tender Shares held by it or any of its Subsidiaries Common Stock to be paid pursuant to the Offer; (iii) modify or add to the conditions set forth in Exhibit A in any manner materially adverse to the holders of Company Common --------- Stock; (iv) extend the Offer; (v) change the form of consideration payable in the Offer; or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Acquirer shallNotwithstanding the foregoing, Merger Sub may, without the consent of the Company (w) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock set forth herein or in Exhibit A are not satisfied, until such time as such conditions are satisfied or waived; (x) extend the Offer for a period of not more than 15 business days beyond the initial expiration date of the Offer, if on the date of such extension less than 90% of the outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer; (y) extend the Offer for any period required by applicable law, including any rule, regulation, interpretation or position of the SEC applicable to the Offer; and (z) extend the Offer for any reason for a period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under this Section 1.01(a). It is agreed that the conditions to the Offer are for the benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the circumstances giving rise to any such condition (including any action or inaction by Parent or Merger Sub not inconsistent with the terms hereof). On the terms and subject to the prior satisfaction or waiver conditions of the conditions to the Offer set forth in Section 6.01and this Agreement, Merger Sub shall, and to its rights to extend the Offer under Section 1.01(b)Parent shall cause Merger Sub to, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means all shares of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Merger Sub becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as soon as practicable after the expiration of the Offer.
(b) On the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer Parent and Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer contain, among other things, an offer to Purchase purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisementother ancillary documents (such Schedule 14D-l and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments and supplements thereto, collectively the “"Offer Documents”"). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent and Merger Sub on the one hand, and the Company on the other hand, shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become such information is false and or misleading in any material respect prior to the Expiration Date respect, and Acquirer further 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 corrected amended or supplemented to be filed with the SEC and to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by applicable federal Federal securities laws. The Company Parent and its counsel Merger Sub shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to promptly notify the Company and its counsel in writing regarding any comments that Acquirer Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents and shall promptly after receipt provide to the Company and its counsel copies of such written comments, if any. The Company shall cooperate with Parent and Merger Sub in responding to any comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselreceived from the SEC with respect to the Offer Documents.
(dc) Prior Subject to the Share Acceptanceterms and conditions of this Agreement, there Parent shall have been contributed provide or cause to Acquirer, or shall have been properly tendered and not withdrawn in be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 and as promptly soon as practicable, but in no any event less than ten (10) within five business days after the first public announcement of the execution of this Agreement, Acquirer Sub shall, and Investor shall commence (cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, (as amended (the “Exchange Act”hereinafter defined), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender obligation of Sub to, and of Investor to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares held by it or any of its Subsidiaries tendered pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer subject to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Exhibit A and to the terms and conditions of this Agreement. The Offer shall initially expire 20 business days after the date of its commencement (subject to the other provisions of this Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”1.1); provided, however, that unless this Agreement is terminated in accordance with Article X, in which term shall also indicate any later date to which case the Offer is (whether or not previously extended in accordance with this Agreementthe terms hereof) shall expire on such date of twenty termination, at the request of the Company, Investor and Sub shall extend the expiration date of the Offer from time to time to the earlier of (20i) business days the date on which Sub purchases or becomes obligated to purchase that number of Shares that would satisfy the Minimum Condition (as defined in Rule 14d-1 under Exhibit A) and (ii) the Exchange Act) from date 60 business days after the date of commencement of the Offerits commencement. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without Without the prior written consent of the Company, authorized by Sub shall not (i) waive the Special Committee. Acquirer shall (which will not require the consent of the Company)Minimum Condition, (Aii) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, reduce the number of Shares validly tendered and not withdrawn subject to the Offer, (iii) reduce the price per share of either class of the Shares to be paid pursuant to the Offer is less than eighty-five percent Offer, (85%iv) of except as provided in the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company)following sentence, extend the Offer for up to ten (10) business daysOffer, notwithstanding that if all of the conditions to of the Offer were are satisfied as or waived, or (v) change the form of consideration payable in the date such extensionOffer. In additionNotwithstanding the foregoing, (A) the Offer Price may be increasedSub may, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, extend the Offer at any time, and from time to time: (Bi) Acquirer may, under if at the terms then scheduled expiration date of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 Offer any of the Exchange Act following conditions to Sub's obligation to accept for payment and pay for the Share Acceptance.
Shares shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; (cii) On the date the Offer is commencedfor any period required by any rule, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoregulation, the “Schedule TO”). The Schedule TO shall contain interpretation or shall incorporate by reference the Offer to Purchase and a form position of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case (as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicablehereinafter defined) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect applicable to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
Offer; (diii) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).until 10 business days following the
Appears in 1 contract
Samples: Agreement and Plan of Merger (Kapson Senior Quarters Corp)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 Upon the terms and subject to the conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10seven Business Days) business days after the public announcement of the execution date of this Agreement, Acquirer Purchaser shall, and Parent shall commence cause Purchaser to, file with Securities and Exchange Commission (within the meaning “SEC”) amended Offer Documents, reflecting the offer to purchase all of the Shares at the Offer Price, and cause the Offer Documents to be disseminated to the stockholders of the Company as and to the extent required by federal securities Laws. The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit A (as they may be amended in accordance with this Agreement, the “Offer Conditions”).
(i) The expiration date of the Offer pursuant to the amended Offer Documents shall be 5:00 p.m., New York City time, on the 15th business day following the filing of the amended Offer Documents pursuant to Section 1.1(a) (determined pursuant to Rule 14d-2 14d1(g)(3) under the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”), an offer ) (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Initial Expiration Date”) or, which term shall also indicate any later date to which if the Offer is has been extended in accordance with this Agreement) of twenty , at the time and date to which the Offer has been so extended (20) business days (as defined the Initial Expiration Date or such later time and date to which the Offer has been extended in Rule 14d-1 under accordance with this Agreement, the Exchange Act) from “Expiration Date”). Purchaser expressly reserves the date of commencement right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the OfferOffer; provided, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01however, that, without the prior written consent of the Company, authorized by Purchaser shall not (A) reduce the Special Committeenumber of shares of Company Common Stock subject to the Offer, (B) reduce the Offer Price or change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition, (D) add to the Offer Conditions or make any condition to the Offer more difficult to satisfy, (E) extend the Expiration Date other than in accordance with this Agreement or provide a “subsequent offering period” within the meaning of Rule 14d11 promulgated under the Exchange Act or (F) otherwise amend the Offer in a manner adverse to the holders of Shares generally. Acquirer Purchaser shall (which will not require terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company), except if this Agreement is terminated pursuant to Section 8.1. If this Agreement is terminated pursuant to Section 8.1, Purchaser shall, and Parent shall cause Purchaser to, promptly (Aand in any event within 24 hours following such termination) extend terminate the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn acquire any Shares pursuant to thereto. If the Offer is less than eighty-five percent (85%) terminated by Purchaser, or if this Agreement is terminated pursuant to Section 8.1 prior to the acceptance for payment and payment for Shares in the Offer, Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights registered holders thereof.
(ii) Parent and securities exercisable or convertible into voting securities Purchaser agree that if on any scheduled Expiration Date of the CompanyOffer, any of the Offer Conditions (including the Minimum Tender Condition and the other Offer Conditions set forth in Exhibit A) is not satisfied or, in Purchaser’s sole discretion, waived (if such condition is permitted to be waived pursuant to this Agreement and applicable Law), then Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as successive periods of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period time of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission Business Days (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form length of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required such periods to be stated therein determined by Parent, in its sole discretion) or necessary such number of Business Days as the parties may agree in order to make permit the statements thereinsatisfaction of such conditions; provided, in light of however, that if the circumstances under which they were madesole then unsatisfied condition is the Minimum Tender Condition, not misleading, except that no representation Purchaser shall be made by Acquirer with respect to information supplied by the Company for inclusion in so extend the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC if and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and only if the Company shall promptly correct any information have delivered to Purchaser a written request that Purchaser so extend the Offer; provided by it for use in further, that if the Offer Documents if and to the extent that it Antitrust Condition shall have become false and misleading in any material respect been satisfied less than five business days prior to the Expiration Date and Acquirer further (as determined pursuant to Rule 14d1(g)(3) of the Exchange Act), no such consent of the Company shall take all steps necessary be required for Parent to cause extend the Offer Documents for a period of up to five business days (as so corrected determined pursuant to be filed with Rule 14d1(g)(3) of the SEC and to be disseminated to holders of SharesExchange Act). Notwithstanding the foregoing, in each case as and no event shall Purchaser be required to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon (1) extend the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to beyond the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).Outside Date or
Appears in 1 contract
Samples: Merger Agreement
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 as promptly as practicableherein, but in no event less than ten Merger Sub shall (10and Parent shall cause Merger Sub to) business days after the public announcement of the execution of this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the “rules and regulations thereunder, the Exchange Act”), an ) a cash tender offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price shares of the Company Common Stock for $2.25 19.61 U.S. Dollars per Share, net to the seller in cash share of Company Common Stock (such priceamount, or such other price any greater amount per Share as may be share of Company Common Stock paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the offer, the Per Share Amount and such offer, as it may be amended from time to time pursuant to the terms hereof, the Offer) no later than ten (10) Business Days after the date hereof. Acquirer shallSubject to satisfaction or, on if permitted hereunder, waiver of the Tender Offer Conditions (as defined below) and the terms and subject conditions hereof, Parent shall cause Merger Sub to the prior satisfaction or waiver irrevocably accept for purchase, and Merger Sub shall irrevocably accept for purchase, all shares of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition Company Common Stock that has not by then have been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any event not more than the fourth (4th) Business Day) following the Expiration Date (as defined below). Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless and until this Agreement is less than eighty-five percent terminated in accordance with Section 8.1.
(85%b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for purchase, 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, if permitted hereunder, waiver pursuant to the terms hereof of (i) the condition (the Minimum Condition) that the number of shares of Company Common Stock validly tendered and not withdrawn prior to the Expiration Date (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the Shares DGCL, by the depositary for the Offer pursuant to such procedures), when added to any shares of Company Common Stock already owned by Parent or any of its subsidiaries, if any, shall be at least a majority of the shares of Company Common Stock then outstanding on a fully-diluted basis (assuming the exercise of all options and other rights to purchase shares of Company Common Stock regardless of exercise price, vesting schedule or other terms or conditions thereof, but excluding any Company Stock Options the holders of which have, as of the Acceptance Date, entered into the option cancellation agreements described in Section 3.3(a)) and (ii) the other conditions set forth in Annex A hereto (the conditions described in clauses (i) and (ii) are collectively referred to as the Tender Offer Conditions). The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub, and Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such 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, that are outstanding without the prior written consent of the Company no change may be made that decreases the Per Share Amount (except as provided in Section 1.1(h)), changes the form of consideration payable in the 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 the Offer shall remain open, or modifies, amends or supplements the Offer or the Tender Offer Conditions in any manner adverse to the Company Stockholders.
(c) Upon the terms and not held by any member subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time, on the later of a Filing Group (i) the twentieth (20th) Business Day (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) following commencement (determined in accordance with Rule 14d-2 under the Exchange Act) of the Offer and (ii) the second (2nd) Business Day following the Solicitation Period End Date (the Initial Expiration Date), unless the Initial Expiration Date has been extended pursuant to, and in accordance with, the provisions of Section 1.1(d) or as required by Applicable Law or the interpretations of the Securities and Exchange Commission (the SEC) (the Initial Expiration Date, or such the later time and date on a fully diluted basiswhich the Initial Expiration Date has been extended pursuant to, after giving effect and in accordance with, this Agreement, the Expiration Date).
(d) Notwithstanding the foregoing or anything to the exercise or conversion contrary set forth in this Agreement, except the last sentence of all options, rights and securities exercisable or convertible into voting securities of the Companythis Section 1.1(d), unless this Agreement shall have been terminated in accordance with Section 8.1, (i) Merger Sub shall extend the Offer for up to ten (10) business daysany period required by any Applicable Law, notwithstanding or any rule, regulation, interpretation or position of the SEC or its staff or the NYSE MKT in any such case that all the conditions is applicable to the Offer were satisfied Offer, and (ii) if, on the initial Expiration Date or any subsequent date as of which the date such extension. In additionOffer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Merger Sub shall extend (Aand re-extend) the Offer Price may be increased, in which event and its Expiration Date beyond the Offer shall be extended to the extent required by law in connection with initial Expiration Date or such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide subsequent date for a subsequent offering period successive extension periods of up to ten (10) business days Business Days each, or for such longer period as the parties may agree, in order to permit the satisfaction of all of the Tender Offer Conditions; provided, however, that if, at any Expiration Date the only Tender Offer Condition that is not satisfied or waived is the Minimum Condition, then Merger Sub shall not be required to extend the Offer for more than two subsequent extension periods after the first such Expiration Date of ten (10) Business Days each, or for such longer period as the parties may agree. Merger Sub may, in its sole discretion, following the Acceptance Date, extend the Offer for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (as defined below) may, in Merger Sub’s sole discretion, provide for such a right; provided, however, that Merger Sub shall not commence any “subsequent offering period” after the Acceptance Date if the Merger can be effected pursuant to Section 251(h) of the Exchange Act following DGCL. Notwithstanding the Share Acceptanceabove, in no event shall Merger Sub be required to extend the Offer beyond the Offer Outside Date or so extend the Offer without the consent of the Company.
(ce) On In the event that this Agreement is terminated pursuant to Section 8.1, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within one Business Day of such termination), irrevocably and unconditionally terminate the Offer and Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the registered holder thereof.
(f) Subject to the terms and conditions of this Agreement and the Offer, Merger Sub (or Parent on Merger Sub’s behalf) shall irrevocably accept for purchase and pay for all shares of Company Common Stock validly tendered and not withdrawn as soon as practicable after the Expiration Date (the time and date of the acceptance for purchase, the Acceptance Date). If the Per Share Amount (or any portion thereof) is to be paid to a person other than the person in whose name the tendered shares of Company Common Stock not represented by certificates (Book Entry Shares) or certificates that, immediately prior to the Effective Time, represented outstanding shares of Company Common Stock (the Certificates) are registered, the amount of any stock transfer or other similar taxes (whether imposed on the registered holder(s), or such other person, or otherwise) payable on account of such issuance or transfer shall be deducted from the Per Share Amount payable, unless evidence satisfactory to Merger Sub of the payment of such taxes or exemption therefrom is submitted. If any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and upon providing an indemnity reasonably satisfactory to Parent and Merger Sub, Merger Sub will pay the Per Share Amount deliverable in respect of the shares of Company Common Stock that were evidenced by the lost, stolen or destroyed Certificate. No interest or dividends shall be paid or accrued on any portion of the Per Share Amount.
(g) As promptly as practicable on the date of commencement of the Offer is commencedOffer, Acquirer Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”)) with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the Offer to Purchase and a Purchase), form of the related letter of transmittal and transmittal, summary advertisement and any other ancillary documents pursuant to which the Offer will be made (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisementsuch other documents, together with any all exhibits, supplements and amendments and supplements thereto, being referred to herein collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in as the Offer Documents). Acquirer Merger Sub shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case Company Stockholders as and to the extent required by applicable federal securities laws. Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws. Each of Acquirer Parent, Merger Sub, and the Company shall agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that it shall have become false and or misleading in any material respect prior respect, and Parent and Merger Sub further agree to the Expiration Date and Acquirer further shall take all steps necessary use reasonable best efforts to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of SharesCompany Stockholders, in each case in all material respects as and to the extent required by applicable federal securities laws. The Company shall promptly furnish to Merger Sub and Parent all information concerning the Company that is required or reasonably requested by Merger Sub or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 1.1(g). Parent and Merger Sub shall give the Company and its counsel shall be given an a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents (and shall provide each time before any comments thereon as soon as practicable) prior to the filing thereof 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. In addition, Acquirer shall Parent and Merger Sub agree to (i) provide to the Company and its counsel in writing with any written comments that Acquirer Parent, Merger Sub or its their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies comments, (ii) unless there has been a Change of Recommendation, provide a reasonably detailed description of any written responses and telephonic notification of any verbal responses by Acquirer oral comments Parent, Merger Sub or their counsel may receive from time to time from the SEC or its counselstaff with respect to the Offer Documents promptly after the receipt of such comments, and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel a reasonable opportunity to review and comment on any written response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC. Parent and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(dh) Prior If, between the date of this Agreement and the Acceptance Date, the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, the Per Share Amount applicable to such shares of Company Common Stock shall be adjusted to the Share Acceptanceextent appropriate; provided, there however, that this Section 1.1(h) shall have been contributed to Acquirer, not affect or shall have been properly tendered and not withdrawn in supersede the Offer, all Shares beneficially owned by any member provisions of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer GroupSection 6.3(a).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 Upon the terms and subject to the conditions of this Agreement set forth in Section 6.01 (including Article IX), as promptly as practicable, practicable (but in no event less later than ten (10) business days after Business Days following the public announcement of the execution date of this Agreement) Merger Sub shall, Acquirer and Parent shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer; provided, being referred to herein as that the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable Company agrees that no shares of Common Stock owned by such seller. The the Company shall not tender Shares held by it or any of its Subsidiaries will be tendered pursuant to the Offer. Acquirer shallThe obligations of Merger Sub to, on the terms and subject of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Common Stock tendered pursuant to the prior Offer are subject only to the satisfaction or waiver of the conditions (to the Offer set forth in Section 6.01, and to its rights to extend the Offer extent permitted under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(bthis Agreement) 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 Section 6.01 hereto and providing for an initial expiration date Exhibit A (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended as they may be amended in accordance with this Agreement, the “Offer Conditions”).
(i) The initial Expiration Date shall be 12 midnight, New York City time, at the end of twenty the 20th Business Day following commencement of the Offer (20determined pursuant to Rule 14d-1(g)(3) business days (as defined in Rule 14d-1 under the Exchange Act) from ). Parent and Merger Sub expressly reserve the date of commencement right, at any time, to, in their sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer; provided, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01however, that, without the prior written consent of the Company, authorized by the Special Committee. Acquirer neither Parent nor Merger Sub shall (which will not require A) reduce the number of shares of Common Stock subject to the Offer, (B) reduce the Offer Price or change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition, (D) impose conditions to the Offer that are different than or in addition to the Offer Conditions, or (E) otherwise amend the Offer in any manner materially adverse to the holders of Common Stock.
(ii) Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub (A) may, in their sole discretion (subject to the obligations of Parent and Merger Sub under Section 2.1(a)(ii)(B)), without consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in on one or more such periodsoccasions for any period if, on any then-scheduled Expiration Date, any of the Offer Conditions shall not be satisfied or, if anyin Parent’s or Merger Sub’s sole discretion, to satisfy any waived (if permitted under this Agreement) until such time as such condition that has not by then been or conditions are satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) ifshall extend the Offer (1) for any period required by any rule, regulation, interpretation or position of the SEC, the staff thereof or the Nasdaq Stock Market (“Nasdaq”) applicable to the Offer, (2) for a period beginning on the Expiration Datecommencement of, and ending 10 Business Days after the number cessation of, (a) any general suspension in trading in, or limitation on prices for, securities on any national securities exchange or in the over the counter market in the U.S., (b) a declaration of Shares a banking moratorium or any suspension of payments in respect of a banking moratorium or any suspension of payments in respect of banks in the U.S. (whether or not mandatory), or (c) any limitation (whether or not mandatory) imposed by any Governmental Entity on the extension of credit by banks or other lending institutions in the U.S., and (3) until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act and any applicable competition, antitrust or investment Laws of jurisdictions other than the U.S. shall have expired or been terminated; provided, however, that in no event shall Parent or Merger Sub be required to extend the Offer (1) beyond the Termination Date or (2) at any time that Parent or Merger Sub are permitted to terminate this Agreement pursuant to Article IX.
(iii) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any required Tax withholding of Taxes pursuant to Section 7.13) all shares of Common Stock validly tendered and not validly withdrawn pursuant to the Offer is less than eightyas soon as practicable after the Expiration Date (as it may be extended and re-five percent (85%) extended in accordance with this Section 2.1(a)). The Offer Price payable in respect of each share of Common Stock pursuant to the preceding sentence shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement. Acceptance for payment of shares of Common Stock pursuant to and subject to the conditions of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to Offer upon the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities expiration of the Company)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”. Parent and Merger Sub expressly reserve the right to, in their sole discretion, following the Offer Closing, extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a “subsequent offering period of up to ten (10) business days period” in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act Act; provided, however, such period (a “Filing Group”including any extensions thereof) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).shall not exceed
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10) business days Business Days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence (the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be midnight (New York City time) on the twentieth (20th) business day following commencement of the Offer (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right to waive, an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Sharein whole or in part, net any condition to the seller in cash (such price, Offer or such other price per Share as may be paid in modify the terms of the Offer, being referred except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of the Company Common Stock subject to herein as the “Offer, (ii) reduce the Offer Price”, (iii) waive or amend the Minimum Tender Condition, add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of the Company Common Stock, (iv) except as otherwise provided in this Section 1.1(a), subject extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to reduction only the holders of the Company Common Stock. Notwithstanding the foregoing, Merger Sub shall extend the Offer for the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer In addition, if at the otherwise scheduled expiration date of the Offer any condition to the Offer is not satisfied, Merger Sub shall, on and Parent shall cause Merger Sub to, extend the Offer for up to two (2) consecutive increments of not more than five (5) Business Days each (or for such longer period as may be agreed by the Company) (each such period an “Extension Period”); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. Following the second Extension Period, Merger Sub may, if requested by the Company, make available one (1) or more “subsequent offering periods”, in accordance with Rule 14d-11 of the Exchange Act, of not less than ten (10) Business Days and not more than twenty (20) Business Days in the aggregate for all subsequent offering periods. On the terms and subject to the prior satisfaction or waiver conditions of the conditions to the Offer set forth in Section 6.01and this Agreement, Merger Sub shall, and to its rights to extend the Offer under Section 1.01(b)Parent shall cause Merger Sub to, accept for payment and pay for Shares tendered as soon as it is legally permitted (subject to do so under applicable law.
(bany withholding of Tax pursuant to Section 4.4(f)) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement all shares of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Merger Sub becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as promptly after the expiration of the Offer.
(b) On the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up Parent and Merger Sub shall file with the SEC, pursuant to ten (10) business days and in accordance with Rule 14d-11 of 14d-3 and Regulation M-A under the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commencedAct, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementshall be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC Parent and on the date first published, sent or given Merger Sub agree 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case shares of the Company Common Stock as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent and Merger Sub for inclusion therein. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior and to the Expiration Date correct any material omissions therein; and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to holders of Sharesthe Company’s stockholders, in each case as and to the extent required by applicable federal Federal securities laws. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing copies of any written comments, and shall inform the Company and its counsel of any oral comments or discussions, that Acquirer Parent, Merger Sub or its their counsel may receive from or engage with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies or the commencement or occurrence of any written responses such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and telephonic notification of Merger Sub shall provide the Company and its counsel 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 and good faith consideration to any verbal responses comments made by Acquirer the Company or its counsel.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of the Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Prior Merger Sub shall not terminate the Offer prior to any scheduled expiration thereof without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Article 9. In the event that this Agreement is terminated pursuant to Article 9 prior to any scheduled expiration thereof, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn purchase of shares of the Company Common Stock in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member tendered shares of the Acquirer Group)Company Common Stock to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (Gtsi Corp)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable but in no event less later than ten (10) five business days after the public announcement of the execution date of this Agreement, Acquirer Sub shall, and Parent shall cause Sub to, commence the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject to the terms and conditions set forth in Exhibit A (within any of which may be waived by Sub in its sole discretion, subject to limitations imposed by applicable law). Sub expressly reserves the meaning right to modify the terms of Rule 14d-2 the Offer, except that, without the consent of the Company, Sub shall not (i) increase the percentage of outstanding shares of Common Stock required to be tendered pursuant to the Minimum Tender Condition (as defined in Exhibit A), (ii) reduce the number of shares of Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) modify or add to the conditions set forth in Exhibit A, (v) except as provided in the following sentence, extend the Offer or (vi) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (u) extend the Offer for a period of not more than 20 business days beyond the date on which the Offer would otherwise expire if on the date of such extension any of the conditions to Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived (other than an extension in order to obtain financing pursuant to the Financing Condition (as defined in Exhibit A) for which an extension may be made only pursuant to clause (x) below), (w) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (x) extend the Offer through and including October 14, 1998 solely in order to obtain financing pursuant to the Financing Condition, and (y) extend the Offer for any reason for a period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (u) or (w) of this sentence. Subject to the terms and conditions of the Offer, Sub shall, and Parent shall cause Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer, but no later than as required by applicable law.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the offer will be made, together with any supplements or amendments thereto, the "Offer Documents") and on such date shall mail the Offer Documents to the Company's stockholders. The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “"Exchange Act”"), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto rules and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the Company’s '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 shall be is made by Acquirer Parent or Sub with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Sub and the Company shall agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior respect, and each of Parent and Sub further agrees to the Expiration Date and Acquirer further shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so corrected amended or supplemented to be filed with the SEC and to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by applicable federal securities lawslaw. The Company Parent and its counsel shall be given an opportunity Sub agree to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any comments that Acquirer Parent, Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments comments. The Company agrees to share with Parent and copies of any written responses Sub information in its possession necessary to enable Parent and telephonic notification of any verbal responses by Acquirer or its counselSub to prepare the Offer Documents.
(dc) Prior Subject to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered terms and not withdrawn in condition of the Offer, all Shares beneficially owned by Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to purchase any member shares of Acquirer or any member of a group Common Stock that has filed a Schedule 13D under Sub becomes obligated to purchase pursuant to the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)Offer.
Appears in 1 contract
The Offer. (a) Provided Subject to the provisions of this Agreement shall and this Agreement not have having been terminated in accordance with Section 7.01 and subject to the conditions of this Agreement set forth in Section 6.01 Article 10 hereof, as promptly as practicable, practicable but in no any event less than ten (10) within five business days after the public announcement of the execution of this Agreementdate hereof, Acquirer Merger Sub shall commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended 1934 (the “"Exchange Act”)") and the rules and regulations promulgated thereunder, an offer to purchase (the “"Offer”") to purchase for cash all of the issued and outstanding Shares shares of Common Stock at a price of $2.25 3.46 per Shareshare of Common Stock, net to the seller in cash cash, without interest (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries higher price paid pursuant to the Offer, the "Offer Consideration"). Acquirer shallNotwithstanding the foregoing, if between the date of this Agreement and the closing of the Offer the outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Purchaser and Merger Sub to commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in Exhibit A hereto and to the terms and subject conditions of this Agreement. Subject to the prior satisfaction or waiver provisions of the conditions to this Agreement, the Offer set forth shall expire 20 business days after the date of its commencement (the "Initial Offer Expiration Date"), unless this Agreement is terminated in Section 6.01accordance with Article 10, and to its rights to extend in which case the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law(whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) The Offer shall be made by means of an offer Purchaser and Merger Sub expressly reserve the right, in their sole discretion, to purchase (the “Offer to Purchase”) containing modify the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which of the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement and to waive any condition of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by Merger Sub shall not (and Purchaser shall cause Merger Sub not to) (i) waive the Special Committee. Acquirer shall Minimum Condition (which will not require the consent of the Companyas defined in Exhibit A), (Aii) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, reduce the number of Shares validly tendered and not withdrawn shares of Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer is less than eighty-five percent Offer, (85%iv) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company)except as set forth below, extend the Offer, (v) change the form of consideration payable in the Offer, (vi) amend or modify any term or condition of the Offer for up (including the conditions set forth on Exhibit A) in any manner adverse to ten any holder of Common Stock or (10vii) business days, notwithstanding that all impose additional conditions to the Offer other than such conditions required by applicable law. So long as this Agreement is in effect and the conditions to the Offer were have not been satisfied as of the date such extension. In additionor waived, (A) the Offer Price may be increasedMerger Sub may, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under extend the terms expiration date of the Offer, provide Offer for a subsequent offering period one or more periods of up to ten additional Business Days each (10) but in no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the fortieth business days day after the date of this Agreement). So long as this Agreement is in effect and the conditions to the Offer have been satisfied or waived and such conditions shall not apply to any extension pursuant to this sentence, Merger Sub may, without the consent of the Company, extend the Offer in accordance with Rule 14d-11 of under the Exchange Act following Act, if (i) the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form number of letter shares of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 Common Stock that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly validly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).represent
Appears in 1 contract
Samples: Merger Agreement (Telelogic Ab)
The Offer. (a) Provided that this Agreement shall not have been validly terminated in accordance with Section 7.01 and subject to the conditions of this Agreement set forth in Section 6.01 its terms, as promptly as practicablereasonably practicable after the date of this Agreement, but in no event less later than ten four (104) business days after (as defined in Rule 14d-1(g)(3) promulgated by the public announcement of United States Securities and Exchange Commission (the execution of this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) after the date of this Agreement, an offer Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer within the meaning of the applicable rules and regulations of the SEC. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Annex A (the “OfferTender Offer Conditions”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, ). The Offer Price shall be net to the seller in cash (such pricecash, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable lawwithout interest.
(b) The initial expiration time of the Offer shall be made by means midnight, New York City time on the twentieth (20th) business day following the commencement of an offer to purchase the Offer (determined using Exchange Act Rule 14d-1(g)(3)) (the “Offer to PurchaseInitial Expiration Date”) containing ). Notwithstanding the foregoing, unless this Agreement is terminated in accordance with the terms set forth in this Agreement hereof, (i) Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of The Nasdaq Global Market Inc. (“Nasdaq”), the SEC or the staff thereof applicable to the Offer or any period required by any other Law, and (ii) if on the conditions set forth in Section 6.01 hereto and providing for an initial expiration Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (together with the Initial Expiration Date, the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) any Tender Offer Condition is not satisfied or waived, Merger Sub shall extend the Offer for the shortest time periods which it reasonably believes are necessary, in one (1) or more such periods, if any, to satisfy any such condition that has not successive periods as determined by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period Merger Sub of up to ten (10) business days each (or any longer period as may be requested by Merger Sub and approved in advance by the Company) in order to permit the satisfaction of all of the Tender Offer Conditions; provided, however, that in no event with respect to either clause (i) or (ii) shall Merger Sub be required to extend the Offer beyond the Walk Away Date, and provided further however, that if at the Initial Expiration Date or at any subsequent Expiration Date (other than any such Expiration Date that follows an extension of the Offer pursuant to Section 1.1(c)), all of the Tender Offer Conditions (except for the Minimum Condition) are satisfied or have been waived, Merger Sub shall only be required to extend the Offer and its Expiration Date beyond the Initial Expiration Date or such subsequent Expiration Date for one or more successive periods in order to permit the satisfaction of all of the Tender Offer Conditions for an aggregate of forty (40) business days, unless the Minimum Condition shall be satisfied earlier. The Offer may not be terminated prior to the Walk Away Date, unless this Agreement is validly terminated in accordance with Article 9, in which case Merger Sub shall (and Parent shall cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one (1) business day) after such termination of this Agreement. Nothing in this Section 1.1(b) shall affect any termination rights in Article 9; and in the event of any conflict between the provisions of this Section 1.1(b) and Article 9, Article 9 shall be controlling.
(c) If fewer than 90% of the number of outstanding shares of Company Common Stock are accepted for payment pursuant to the Offer (excluding for this purpose as shares that are tendered for payment pursuant to the Offer any shares that are tendered in the Offer pursuant to notices of guaranteed delivery), Merger Sub may, without the consent of the Company, elect to provide a subsequent offering period (and one or more extensions thereof) for the Offer in accordance with Rule 14d-11 of the Exchange Act (each a “Subsequent Offering Period”) following its acceptance for payment of shares of Company Common Stock in the Share AcceptanceOffer. The Subsequent Offering Period, if any, shall be a period of not less than three (3) nor more than twenty (20) business days in the aggregate (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act).
(cd) Merger Sub expressly reserves the right to waive any condition to the Offer, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the consent of the Company, Merger Sub shall not do any of the following:
(i) reduce the number of Shares sought to be purchased by Merger Sub in the Offer;
(ii) reduce the Offer Price;
(iii) modify or waive the Minimum Tender Condition (as defined in Annex A);
(iv) add to the Tender Offer Conditions set forth in Annex A or modify or supplement any Tender Offer Condition (other than to waive such Tender Offer Conditions);
(v) change the form of consideration payable in the Offer; or
(vi) other than as permitted or required by Section 1.1(b) or Section 1.1(c), extend or otherwise change the Expiration Date of the Offer; or
(vii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Shares.
(e) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal containing the terms and conditions set forth in this Agreement and Annex A and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively being referred to as the “Offer Documents”). The Offer Documents Company shall comply in promptly provide Parent with all material respects with information concerning the provisions of Company that is required by applicable federal securities laws andto be included in the Offer Documents. Each of Parent, on Merger Sub and the date filed with Company shall promptly correct any information provided by it for use in the SEC Offer Documents if and on the date first published, sent or given to the Company’s stockholders, shall extent necessary such that the Offer Documents do not contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading, except that no representation . Each of Parent and Merger Sub shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further 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 holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaws. Each of Acquirer Parent and Merger Sub shall afford the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment upon the Offer Documents (before they are filed with the SEC and disseminated to stockholders, and Parent and Merger Sub shall provide give reasonable and good faith consideration to any comments thereon as soon as practicablemade by the Company and its counsel. Parent and Merger Sub shall (i) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing copies of any written comments that Acquirer (and a reasonably detailed description of any oral comments) Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, (ii) consult with the Company and its counsel prior to responding to any such comments, (iii) provide the Company and its counsel a reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC and (iv) provide the Company and its counsel with copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselall such responses.
(df) Prior Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Share AcceptanceOffer. On the terms and subject to the conditions of the Offer and this Agreement, there Merger Sub shall have been contributed to Acquirer, or (and Parent shall have been properly cause Merger Sub to) pay for all Shares validly tendered and not withdrawn in pursuant to the Offer, all Shares beneficially owned by any member Offer that Merger Sub becomes obligated to purchase pursuant to the Offer promptly (within the meaning of Acquirer or any member of a group that has filed a Schedule 13D Rule 14e-1(c) under the Exchange Act (a “Filing Group”Act) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member after the expiration of the Acquirer Group)Offer; provided that Merger Sub shall (and Parent shall cause Merger Sub to) pay for any Shares validly tendered in any Subsequent Offering Period promptly after such Shares are tendered.
(g) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Shares occurring or having a record date on or after the date of this Agreement and prior to the payment by Merger Sub for the Shares.
Appears in 1 contract
Samples: Merger Agreement (Lasercard Corp)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable but in no event less later than ten (10) business days after the public announcement of the execution of this AgreementAugust 9, Acquirer 1999, Sub shall, and Parent shall commence (cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the “Exchange Act”rules and regulations promulgated thereunder, the "EXCHANGE ACT"), an offer the Offer. Subject to Section 1.1(c), the obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Offer Securities tendered pursuant to the Offer shall be subject only to the Minimum Condition (as defined in the attached EXHIBIT C) and the other conditions set forth in EXHIBIT C (the “Offer”) to purchase for cash all of the issued Minimum Condition and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share conditions being hereinafter collectively referred to as the "OFFER CONDITIONS") (any of which may be paid waived by Sub in the Offerwhole or in part at any time and from time to time in its sole discretion, being referred to herein as the “Offer Price”)except that, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company Section 1.1(c), Sub shall not tender Shares held by it or any waive the Minimum Condition without the consent of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms Company) and subject to the prior satisfaction rights of Parent or waiver Sub to terminate this Agreement as provided in Section 8.
1. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Offer Securities subject to the Offer, (ii) reduce the Applicable Offer Prices, (iii) impose any other conditions to the Offer set forth other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in Section 6.01the next sentence, and to its rights to extend the Offer, or (v) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, and (iv) exercise Sub's rights under Section 1.01(b1.1(c), accept for payment and pay for Shares tendered as soon as it is legally permitted in each case subject to do so under applicable law.
(b) The Offer shall be made by means the right of an offer Parent, Sub or the Company to purchase (the “Offer terminate this Agreement pursuant to Purchase”) containing the terms set forth in this Agreement hereof. Parent and Sub agree that if at any scheduled expiration date of the Offer, either of the conditions set forth in Section 6.01 hereto paragraphs (e) and providing for an initial (f) of EXHIBIT C or the Minimum Condition shall not have been satisfied, but at such scheduled expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend all the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall paragraphs (which will not require the consent of the Companya), (Ab), (c), (d), (g), (h) and (i) shall then be satisfied, at the request of the Company (confirmed in writing), Sub shall extend the Offer for the shortest from time periods which it reasonably believes are necessaryto time, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion subject to the extent permitted by Section 6.03) right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof and (B) ifprovided that Sub shall not be required to extend the Offer beyond September 30, on 1999. Subject to the Expiration Dateterms and conditions of the Offer and this Agreement, the number of Shares Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Offer Securities validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding Sub becomes obligated to accept for payment, and not held by any member of a Filing Group (determined on a fully diluted basispay for, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions pursuant to the Offer were satisfied as of soon as practicable after the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms expiration of the Offer, provide for a subsequent offering period of up and in any event in compliance with the obligations respecting prompt payment pursuant to ten (10Rule 14e-1(c) business days in accordance with Rule 14d-11 of under the Exchange Act following the Share AcceptanceAct.
(cb) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO 14D-1 (the "SCHEDULE 14D-1") with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule 14D-1 and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”"OFFER DOCUMENTS"). The Offer Documents , and Parent and Sub shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required cause 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause disseminated the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case Offer Securities as and to the extent required by applicable federal Federal securities laws. Each of Acquirer Parent, Sub and the Company shall each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall be or shall have become false and or misleading in any material respect prior respect, and Parent and Sub further agree to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of SharesOffer Securities, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given an reasonable opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the their filing thereof with the SECSEC or dissemination to holders of Offer Securities. In addition, Acquirer shall Parent and Sub agree to provide to the Company and its counsel in writing any comments that Acquirer Parent, Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies to cooperate with the Company and its counsel in responding to any such comments.
(c) In the event the Minimum Condition is not satisfied on any scheduled expiration date of the Offer, Sub may, in its sole discretion and without the consent of the Company (i) if any Offer Conditions other than the Minimum Condition shall not have been satisfied or waived, withdraw the Offer or allow it to expire, subject to the right of the Company to request that Sub extend the Offer by reason of the failure to satisfy either of the conditions set forth in paragraphs (e) and (f) of EXHIBIT C or the Minimum Condition, as set forth in Section 1.1(a), (ii) extend the Offer pursuant to Section 1.1(a), (iii) withdraw the Offer and, at the request of Sub (confirmed in writing), Company, acting through the Company's Board of Directors, shall, in accordance with applicable law, the Company Charter and Company Bylaws, duly call, give notice of, convene and hold a special meeting of its shareholders as promptly as practicable following the giving of such request by Sub for the purpose of considering and taking action upon the Merger and this Agreement, and the parties shall comply with the procedures and obligations set forth in Section 2.8 with respect to a Special Meeting or (iv) amend the Offer to provide that, in the event (A) the Minimum Condition is not satisfied at the next scheduled expiration date of the Offer (after giving effect to the issuance of any written responses and telephonic notification Shares issued pursuant to the Stock Option Agreement but without giving effect to the potential issuance of any verbal responses Shares issuable upon exercise of the Stock Option Agreement), and (B) the number of Shares tendered pursuant to the Offer and not withdrawn as of such next scheduled expiration date is more than 50% of the then outstanding Shares, Sub shall waive the Minimum Condition and amend the Offer to reduce the number of Shares subject to the Offer to a number of Shares that, when added to the Shares then owned by Acquirer Sub, will equal 49.99% of the Shares then outstanding (the "REVISED MINIMUM NUMBER"), and, if a greater number of Shares is tendered into the Offer and not withdrawn, purchase, on a pro rata basis, the Revised Minimum Number of Shares, and, in the case of each of clauses (i), (ii), (iii) and (iv), subject to the right of Parent, Sub or its counselthe Company to terminate this Agreement pursuant to the terms hereof. In no event, however, shall Sub be required to accept for purchase or pay for any Offer Security if less than the Revised Minimum Number of Shares are tendered pursuant to the Offer and not withdrawn at the expiration date. Notwithstanding any other provisions of this Agreement, in the event that Sub purchases a number of Shares equal to the Revised Minimum Number, then without the prior written consent of Sub prior to the termination of this Agreement, Company shall take no action whatsoever to increase the percentage of Shares owned by Sub in excess of the Revised Minimum Number.
(d) Prior Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Offer Securities that Sub becomes obligated to accept for payment, and pay for, pursuant to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Merger Agreement (Harris Corp /De/)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10) business days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the satisfaction or waiver of the conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of the Offer shall be at the time that is one minute following 11:59 p.m., New York City time, on the date that is 20 business days (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer () after the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) first commenced (within the meaning of twenty (20) business days (as defined in Rule 14d-1 14d-2 promulgated under the Exchange Act) from ). Merger Sub expressly reserves the date of commencement right to waive any Offer Condition or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require ii) reduce the consent Offer Price, (iii) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in Section 1.01(b), extend the expiration date of the CompanyOffer, (vi) change the form of consideration payable in the Offer, (vii) otherwise amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) except as otherwise provided in Section 1.01(b), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act.
(b) Notwithstanding the foregoing:
(i) Merger Sub shall, and Parent shall cause Merger Sub to, (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more consecutive increments of not more than ten business days each (or for such periodslonger period as may be agreed by the Company), if any, to satisfy at the scheduled expiration date of the Offer any such condition that has of the Offer Conditions (other than the Minimum Tender Condition) shall not by then have been satisfied (or waived, until such time as such conditions shall have been satisfied or waived by Acquirer in its discretion to (irrespective of whether the extent permitted by Section 6.03Minimum Tender Condition has been satisfied) and (B) ifextend the Offer for the minimum period required by any rule, on regulation or interpretation or position of the Expiration SEC or the staff thereof or The NASDAQ Global Market (“Nasdaq”) applicable to the Offer; provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date.
(ii) If at the otherwise scheduled expiration date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Merger Sub shall, and Parent shall cause Merger Sub to, extend the number Offer at the request of Shares the Company for one or more consecutive increments of not more than ten business days each; provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date.
(iii) If, at the time of the applicable expiration date, all of the Offer Conditions (other than the Minimum Tender Condition) are satisfied, all comments of the SEC or its staff applicable to the Offer or the Offer Documents have been resolved and no rule, regulation or interpretation of the SEC or its staff applicable to the Offer would require Parent or Merger Sub to extend the Offer, then Merger Sub shall only be required to extend the Offer and its expiration date beyond the then existing expiration date for up to three consecutive additional periods not to exceed an aggregate of thirty business days to permit the Minimum Tender Condition to be satisfied (provided that each such period will be ten business days unless the Company agrees otherwise); provided that Merger Sub may, in its discretion (and without the consent of the Company), continue to extend the Offer beyond the additional twenty business day period for additional periods of up to ten business days each (the length of such period to be determined by Parent and Merger Sub).
(c) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for (or cause to be paid), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Merger Sub becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as promptly as practicable after the expiration of the Offer. The date such extension. In addition, (A) on which Merger Sub first accepts for payment the shares of Company Common Stock validly tendered in the Offer Price following the expiration of the Offer (as it may be increasedextended in accordance with Section 1.01(b)) is referred to as the “Offer Closing Date”. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with Section 1.01(b)), unless this Agreement is validly terminated in which event accordance with Section 8.01. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, Merger Sub shall be extended promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the extent required by law registered holders thereof. Nothing contained in connection with such increase, Section 1.01 shall affect any termination rights set forth in each case without Section 8.01.
(d) As promptly as practicable on the consent date of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up to ten Parent and Merger Sub shall (10i) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer include an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”)) and (ii) disseminate the Offer Documents to the holders of Company Common Stock. The Offer Documents Company shall comply in promptly furnish to Parent and Merger Sub all material respects with information concerning the provisions of applicable federal securities laws and, on Company required by the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion set forth in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior to the Expiration Date respect, and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal U.S. Federal securities lawsLaws. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Acquirer Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC or its staff with respect to the Offer Documents, Parent and copies of Merger Sub shall (x) provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and (y) give reasonable and good faith consideration to any written responses and telephonic notification of any verbal responses comments made by Acquirer the Company or its counsel.
(de) Prior Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Share AcceptanceOffer.
(f) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, there reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring or having a record date on or after the date of this Agreement and prior to the Offer Closing Date, in each case, effected in compliance with Section 5.01 and the Offer Price as so adjusted shall have been contributed provide to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned holders of Company Common Stock the same economic effect as contemplated by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as this Agreement prior to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)such action.
Appears in 1 contract
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.01 and subject to that none of the conditions of this Agreement events set forth in Section 6.01 paragraphs (a) through (c) of clause (iv) of Annex A shall have occurred and be continuing, as promptly as practicable, but practicable and in any event no event less more than ten six (106) business days Business Days after the public announcement of the execution date of this Agreement, Acquirer Offeror shall, and Parent shall commence (cause Offeror to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver The obligation of the conditions to the Offer set forth in Section 6.01Offeror to, and of Parent to its rights to extend the Offer under Section 1.01(b)cause Offeror to, accept for payment and pay for Shares any shares of Company Common Stock tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means subject only to the satisfaction of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date Annex A (the “Expiration DateTender Offer Conditions”, which term shall also indicate any later date to which ) and the procedural and customary terms set forth in the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under Documents; provided that Parent and Offeror may, without the Exchange Act) from the date of commencement consent of the Offer. Acquirer shall not decrease Company (but, for the avoidance of doubt, subject to Sections 1.01(c) and 1.01(d)), increase the Offer Price or decrease and waive any of the number Tender Offer Conditions (other than the Minimum Tender Condition, which may not be waived without the prior written consent of Shares sought the Company) and make changes in the Offer, amend the terms and conditions to of the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by neither Offeror nor Parent may change the Special Committee. Acquirer shall (which will not require the consent form of the Company)consideration to be paid, (A) extend decrease the Offer for the shortest time periods which it reasonably believes are necessary, in one Price or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant shares of Company Common Stock sought to be purchased in the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basisOffer, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the impose additional conditions to the Offer were satisfied as of Offer, reduce the date such extension. In addition, (A) the Offer Price may be increased, in time period during which event the Offer shall be extended remain open, or modify any of the Tender Offer Conditions or amend any other term of the Offer in any manner adverse to the extent required by law in connection with such increase, in each case without the consent holders of the Company, and (B) Acquirer may, under shares of Company Common Stock. The Company agrees that no shares of Company Common Stock held by the terms Company or any of its Subsidiaries will be tendered in the Offer, provide for a subsequent offering period of up to ten .
(10b) business days Provided that this Agreement shall not have been terminated in accordance with Rule 14d-11 Section 8.01 and that none of the Exchange Act following the Share Acceptance.
events described in paragraphs (a) through (c) On of clause (iv) of Annex A shall have occurred and be continuing, as promptly as practicable and in any event no more than six (6) Business Days after the date the Offer is commencedof this Agreement, Acquirer Parent and Offeror shall file with the United States U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect (as amended and supplemented from time to the Offer (together with all amendments and supplements thereto and including the exhibits theretotime, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference ) with respect to the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TOOffer, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents which shall comply in all material respects with the provisions of applicable federal securities laws andLaws, on and shall contain or incorporate by reference the date filed with the SEC and on the date first published, sent or given offer to purchase relating 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 Offer and forms of the circumstances under related letter of transmittal and summary advertisement other appropriate documents (which they were madedocuments, not misleadingas amended or supplemented from time to time, except that no representation shall be made by Acquirer with respect are referred to information supplied by herein collectively as the Company for inclusion in the “Offer Documents”). Acquirer shall Parent and Offeror further take all steps necessary agree to cause disseminate the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case shares of Company Common Stock as and to the extent required by applicable federal securities lawsLaws. The Company shall promptly provide to Parent and Offeror all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required under the Exchange Act or reasonably requested in connection with any action contemplated by this Section 1.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents, and Parent and Offeror shall give reasonable and good faith consideration to any comments made by the Company and its counsel prior to their filing with the SEC (it being understood that the Company and its counsel shall provide any comments thereon as soon as practicable). Parent and Offeror agree to provide the Company (in writing, if written), and to consult with the Company and its counsel regarding, any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptly after receipt thereof and any responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses. Each of Acquirer Parent, Offeror and the Company shall agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and or misleading in any material respect prior respect, and Parent and Offeror further agree to the Expiration Date and Acquirer further shall 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 Sharesshares of Company Common Stock, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel Law.
(c) Unless this Agreement shall have been terminated pursuant to Section 8.01, the “initial scheduled expiration date of the Offer” shall be given an opportunity twenty (20) business days (as defined in Rule 14d-1(g)(3) promulgated under the Exchange Act) after (and including the day of) the date of its commencement (such date, or such subsequent date to review and comment upon which the expiration of the Offer Documents (is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Offeror shall provide not, and Parent agrees that it shall cause Offeror not to, terminate or withdraw the Offer other than in connection with the termination of this Agreement in accordance with Section 8.01 hereof; provided that Offeror shall not be required to, and Parent shall not be required to cause Offeror to, extend the Offer beyond the Outside Date. Offeror and Parent may, without receiving the consent of the Company, extend the Expiration Date for any comments thereon as soon as practicable) prior period required by applicable rules and regulations of the SEC, the NASDAQ Global Market or any other stock exchange or automated quotation system applicable to the filing thereof with Offer. Notwithstanding the SECforegoing, Parent and Offeror shall, unless this Agreement shall have been terminated pursuant to Section 8.01, extend the Offer from time to time if at any scheduled Expiration Date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived; provided that such extension shall be for a period that is not more than seven (7) Business Days after such previously scheduled Expiration Date (unless otherwise reasonably agreed by the parties); provided, further, that Offeror shall not be required to, and Parent shall not be required to cause Offeror to, extend the Offer beyond the Outside Date. In additionthe event the Acceptance Date occurs but Parent does not acquire a number of shares of Company Common Stock sufficient to enable a Short Form Merger to occur (assuming exercise of the Top-Up Option in full), Acquirer shall provide to Offeror may, without the Company and its counsel in writing any comments that Acquirer consent of the Company, undertake one or its counsel may receive from the SEC or its staff with respect to more “subsequent offering periods” for the Offer Documents promptly after receipt in accordance with Rule 14d-11 under the Exchange Act for a number of such comments and copies of days to be determined by Parent, which shall be not less than three (3) nor more than twenty (20) Business Days in the aggregate (it being understood that any written responses and telephonic notification of any verbal responses by Acquirer or its counsel“subsequent offering period” shall not extend the Expiration Date).
(d) Prior Subject to the Share Acceptancesatisfaction (or, there to the extent permitted by this Agreement, waiver by Parent or Offeror) of the Tender Offer Conditions, Offeror shall, and Parent shall have been contributed to Acquirercause Offeror to, or shall have been properly immediately accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer (the first date of acceptance for payment and payment, the “Acceptance Date” and the time of acceptance for payment and payment on the Acceptance Date, the “Acceptance Time”) on or after the Expiration Date. If Offeror shall commence a subsequent offering period in connection with the Offer, Offeror shall immediately accept for payment and pay as soon as possible for all Shares beneficially owned by any member additional shares of Acquirer or any member Company Common Stock tendered during such subsequent offering period, subject to and in compliance with the requirements of a group that has filed a Schedule 13D Rule 14d-11(e) under the Exchange Act Act. Parent shall provide or cause to be provided to Offeror on a timely basis the funds necessary to purchase any shares of Company Common Stock that Offeror becomes obligated to purchase pursuant to the Offer.
(a e) Offeror shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986 (the “Filing GroupCode”) ), or under any provision of state, local or foreign Tax Law, and all such amounts shall be treated as having been paid to which Acquirer or any the applicable holder of its members is a signatory (except for 1530 Shares owned by one member shares of the Acquirer Group)Company Common Stock.
Appears in 1 contract
Samples: Merger Agreement (Uap Holding Corp)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 Upon the terms and subject to the conditions of this Agreement set forth in Section 6.01 (including Article VII), as promptly as practicablereasonably practicable following the date hereof, but in any event no event less later than ten (10) business days the tenth Business Day after the initial public announcement of the execution of this Agreement, Acquirer Merger Sub shall, and Parent shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer 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 Common Stock validly tendered and not properly withdrawn pursuant to the Offer are subject only to the satisfaction or waiver (to the “Offer”extent permitted under this Agreement) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller conditions set forth in cash Annex I (such price, or such other price per Share as they may be paid amended in the Offeraccordance with this Agreement, being referred to herein as the “Offer PriceConditions”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The To the extent permitted by Law, Parent and Merger Sub expressly reserve the right, at any time, to waive, in whole or in part, any Offer shall be made by means of an offer Condition (other than the Minimum Condition), to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease increase the Offer Price or decrease to modify the number terms of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01a manner consistent with the terms of this Agreement; provided, however, that, without the prior written consent of the Company, authorized by the Special Committee. Acquirer neither Parent nor Merger Sub shall (which will not require i) reduce the consent maximum number of shares of Common Stock sought to be purchased in the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are in addition to the Offer Conditions, (v) modify or amend any existing Offer Conditions in a manner adverse to the holders of the CompanyCommon Stock, (vi) except as otherwise required or expressly permitted by Section 1.1(d), extend or otherwise change the Expiration Time, (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VII.
(c) The Offer shall initially expire at midnight (Eastern Standard Time) (i.e., one minute after 11:59 p.m. Eastern Standard Time) on the date that is twenty (20) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Subject to Article VII, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions, (i) for the minimum period required by any rule, regulation, interpretation or position of the SEC, the staff thereof or the Nasdaq Global Market (the “Nasdaq”) applicable to the Offer and (ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), in consecutive increments of at least five and up to ten Business Days each (with each such period to end at midnight (Eastern Standard Time) (i.e., one minute after 11:59 p.m. Eastern Standard Time), on the last Business Day of such period), or such other duration as may be agreed to by Parent and the Company, in order to permit the satisfaction of such Offer Condition(s); provided, however, that (A) in either case Merger Sub shall not be required to extend the Offer (1) to a date later than the Outside Date or (2) after the Company notifies, or is required to notify, Parent of a Takeover Proposal in accordance with Section 5.4(c), except to the extent that at least one (1) day prior to the then-scheduled Expiration Date (I) the Takeover Proposal giving rise to such notification has been withdrawn or the Company Board has rejected the Takeover Proposal giving rise to such notification, (II) the Company Board has reconfirmed the Board Recommendation (after receiving such Takeover Proposal), and (III) the withdrawal or rejection of such Takeover Proposal or such reconfirmation of the Board Recommendation shall have been publicly announced by the Company, (B) any such extension shall not be deemed to impair, limit, or otherwise restrict in any manner the rights of the parties hereto to terminate this Agreement pursuant to the terms of Article VII, and (C) with respect to clause (ii) above, if, at any such scheduled Expiration Time, the only Offer Condition that has not been so satisfied or waived is the Minimum Condition, then Merger Sub shall not be required to extend the Offer for more than one such additional increment (and shall not be required to extend the shortest time periods Offer at any subsequent Expiration Time at which it reasonably believes are necessarythe Minimum Condition is not satisfied), in one or more such periodsbut shall be entitled, if anyat its sole discretion, to satisfy any extend the Offer for more than one such condition that has not by then been satisfied additional increment.
(or waived by Acquirer in its discretion e) On the terms and subject to the extent permitted by Section 6.03conditions of this Agreement, (i) and (B) if, on at or as promptly as practicable following the Expiration DateTime, Merger Sub shall, and Parent shall cause Merger Sub to, irrevocably accept for payment (the time of acceptance for payment, the number “Offer Acceptance Time”) all shares of Shares Common Stock validly tendered and not properly withdrawn pursuant to the Offer is less than eighty-five percent and (85%ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of the Shares that are outstanding Common Stock validly tendered and not held by any member of a Filing Group (determined properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Merger Sub, on a fully diluted timely basis, after giving effect the funds necessary to the exercise or conversion purchase any shares of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up Common Stock that Merger Sub becomes obligated to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.
(f) The Offer Price payable in respect of each share of Common Stock shall be paid on the terms and subject to the conditions of this Agreement. The Company agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) Unless this Agreement is terminated pursuant to Article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the date such extensionCompany in its sole discretion. In additionthe event this Agreement is terminated pursuant to Article VII, Merger Sub shall promptly (Aand in any event within two (2) Business Days) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Common Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares of Common Stock to the tendering shareholders in accordance with applicable Law.
(h) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price may be increased, in which event the Offer shall be extended provide to the extent required holders of shares of Common Stock the same economic effect as contemplated by law in connection with this Agreement prior to such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptanceaction.
(ci) On the date of commencement of the Offer is commenced(within the meaning of Rule 14d-2 under the Exchange Act), Acquirer Parent and Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO , which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisementother appropriate ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”), and cause the Offer Documents to be disseminated to the holders of the Common Stock as and to the extent required by United States federal securities Laws. The Offer Documents Company shall comply in promptly furnish or otherwise make available to Parent or Parent’s legal counsel upon request all material respects with information concerning the provisions of Company that is required by the Exchange Act or other applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required Law to be stated therein or necessary set forth in order to make the statements thereinOffer Documents, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to and all other information supplied by concerning the Company that may be reasonably requested by Parent for inclusion in the Offer Documents. Acquirer Each of Parent, Merger Sub and the Company shall further promptly correct any information supplied by it or on its behalf 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 and use all reasonable efforts to promptly 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 holders of Sharesthe Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. Each Parent and Merger Sub shall promptly notify the Company upon the receipt of Acquirer any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all written correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the Company shall promptly correct any information provided by it for use in SEC, on the other hand. Unless there has been an Adverse Recommendation Change, prior to the filing of the Offer Documents if and any amendment or supplement thereto with the SEC, dissemination thereof to the extent that it shall have become false and misleading in holders of the Common Stock, or responding to any material comments of the SEC with respect prior to the Expiration Date Offer Documents, Parent and Acquirer further Merger Sub shall take all steps necessary to cause provide the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an a reasonable opportunity to review and comment upon on such Offer Documents or any amendment, supplement, or response, and Parent and Merger Sub shall give reasonable consideration to any such comments. Unless the Offer Documents (and shall provide has been terminated in accordance with the terms of this Agreement, in the event that Parent or Merger Sub receives any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to (i) respond promptly after receipt of to such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel(ii) take all other actions necessary to resolve the issues raised therein.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Merger Agreement (Qumu Corp)
The Offer. (ai) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject to the conditions of this Agreement set forth in Section 6.01 as As promptly as practicable, practicable but in no event less later than ten (10) business days after the public announcement of the execution date of this Agreement, Acquirer Sub shall, and Parent shall cause Sub to, commence (the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all applicable rules and regulations of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such sellerSEC. The initial expiration date of the Offer shall be the twentieth business day from and after the date the Offer is commenced. The obligation of Sub to, and of Parent to cause Sub to, accept for payment, and pay for, any shares of Company shall not tender Shares held by it or any of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer subject to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto Exhibit A (any of which may be waived by --------- Sub in its sole discretion) and providing for an initial expiration date (to the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended other conditions in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under . Sub expressly reserves the Exchange Act) from right to modify the date of commencement terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, Company (such consent to be authorized by the Special Committee. Acquirer shall (which will not require the consent of the CompanyCompany Board), Sub shall not (A) extend reduce the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion number of shares of Company Common Stock subject to the extent permitted by Section 6.03) and Offer, (B) if, on reduce the Expiration Date, the number consideration per share of Shares validly tendered and not withdrawn Company Common Stock to be paid pursuant to the Offer is less than eighty-five percent below the Offer Price, (85%C) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect modify or add to the exercise or conversion conditions set forth in Exhibit A in any manner adverse to the holders of all optionsCompany Common Stock, rights and securities exercisable or convertible into voting securities of the Company--------- (D) except as provided in Section 2.01 (ii), extend the Offer for up to ten or (10E) business dayschange the ----------------- form of consideration payable in the Offer.
(ii) Notwithstanding the restriction in Section 2.01(a)(i)(D), notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In additionSub --------------------- may, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and extend the Offer: (A) if at the scheduled expiration date of the Offer any of the conditions to Sub's obligation to purchase shares of Company Common Stock are not satisfied or waived, until such time as such conditions are satisfied or waived; (B) Acquirer mayfor any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; and (C) in order to provide sufficient time to respond to any matter hereafter arising and required to be disclosed to Parent pursuant to Section 6.01(c)(ii) and which causes Parent or Sub to amend ------------------- the Offer Documents; provided that any extension pursuant to this clause (C) -------- ---------- shall not exceed 20 business days. In addition, Sub may extend the Offer after the acceptance of shares of Company Common Stock thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act of not more than 20 business days to meet the objective (which is not a condition to the Offer) that there be validly tendered, in accordance with the terms of the Offer, provide for a subsequent offering period prior to the expiration date of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments as so extended) and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and not withdrawn a form number of letter shares of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisementCompany Common Stock, together with any amendments shares of Company Common Stock then owned by Parent and supplements theretoSub, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 which represents at least 90% of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Fully Diluted Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Merger Agreement (Ual Corp /De/)
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 7.01 10.1 and subject to so long as none of the conditions of this Agreement events or circumstances set forth in Section 6.01 as promptly as practicableAnnex A hereto shall have occurred and be continuing, but in no event less not later than ten (10) the seventh business days after day from the date of public announcement of the execution of this AgreementAgreement (counting the business day on which such announcement is made), Acquirer Parent shall cause Subsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”")), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares Offer at a price of $2.25 per Share, net equal to the seller ------------ Common Stock Price for each share of Company Common Stock. The obligations of Subsidiary to consummate the Offer, and to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer shall be subject solely to those conditions set forth in cash (such price, or such other price per Share as Annex A. It is agreed that the conditions to the Offer set forth in ------- Annex A are for the benefit of Subsidiary and may be paid asserted by Subsidiary and ------- Subsidiary expressly reserves the right, in its sole discretion, to waive any such condition; provided, that without the prior written consent of the Company, Subsidiary shall not waive the Minimum Condition (as defined in Annex A). The ------- initial expiration date of the Offer (the "Initial Expiration Date") shall be ----------------------- the 20th business day following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer.
(b) Subsidiary expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer; provided, that without the prior written consent of the Company, no modification or change may be made which (i) decreases the Common Stock Price (except as permitted by this Agreement); (ii) changes the form of consideration payable in the Offer, being referred to herein as ; (iii) changes the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Minimum Condition; (iv) limits the number of shares of Company shall not tender Shares held by it or any of its Subsidiaries Common Stock sought pursuant to the Offer. Acquirer shall, on ; (v) changes the terms and subject conditions to the Offer (other than conditions that are immaterial and administrative in nature) in a manner adverse to the holders of the Company Common Stock; or (vi) imposes additional conditions to the Offer other than conditions that are immaterial and administrative in nature. Notwithstanding the foregoing, Subsidiary may, without the consent of the Company (and, in the case of clauses (i) and (ii) below, Subsidiary shall if the Company requests Subsidiary in writing to do so), (i) extend and re- extend the Offer on one or more occasions for such period as may be determined by Subsidiary in its sole discretion (each such extension period not to exceed 10 business days at a time), if at the then-scheduled expiration date of the Offer any of the conditions to Subsidiary's obligations to accept for payment and pay for shares of Company Common Stock shall not be satisfied or waived and (ii) extend and re-extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. Subsidiary --- also may extend the Offer on one occasion for an aggregate period of not more than 10 business days if the Minimum Condition has been satisfied but less than 90% of the sum of (y) the total number of shares of outstanding Company Common Stock plus (z) the total number of shares of Company Common Stock issuable on or prior satisfaction to the Outside Date (or waiver the Extended Outside Date if the Outside Date has been extended in accordance with Section 10.1(b)(iii)) upon the exercise of any outstanding Options, warrants, conversion privileges or similar rights with respect to Company Common Stock that are currently vested or that will vest on or prior to the Outside Date or Extended Outside Date, as the case may be, has been validly tendered and not properly withdrawn as of the Initial Expiration Date; provided, however, that if Subsidiary elects to extend the Offer pursuant to this sentence, then all conditions to the Offer set forth in Annex A shall be ------- deemed to be irrevocably waived except to the extent that a breach by the Company of any covenant in this Agreement or a failure of a representation or warranty of the Company to be true and correct as of the date of this Agreement has occurred in either case because of one or more willful and intentional acts or omissions by the Company following the date of Subsidiary's election to extend the Offer pursuant to this sentence, which would cause any of the conditions to the Offer set forth in Section 6.01, clauses (c)(i) and (c)(ii) of Annex A not ------- to its rights be satisfied. Subject to extend the terms and the conditions of the Offer under Section 1.01(b)and this Agreement, as soon as practicable after expiration of the Offer, Subsidiary shall accept for payment and pay for, and Parent shall cause Subsidiary to accept for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means payment and pay for, all shares of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of Offer. Notwithstanding the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basisforegoing, after giving effect Subsidiary may in its sole discretion elect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with pursuant to, and on the terms required by, Rule 14d-11 of under the Exchange Act following the Share AcceptanceAct.
(c) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Subsidiary shall file with the United States Securities and Exchange Commission (SEC with respect to the “SEC”) Offer a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the all exhibits thereto, the “"Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall ") which will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).-----------
Appears in 1 contract
Samples: Agreement and Plan of Merger (Siemens Aktiengesellschaft)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions terms of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10five Business Days) business days after the public announcement of the execution date of this Agreement, Acquirer Merger Sub shall, and Parent shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company shall not tender Shares held by it or any of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on the terms and Offer are subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date Exhibit A (the “Offer Conditions”). The Offer shall expire at midnight, New York City time, on the 20th Business Day following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) (such time, the “Initial Expiration Date”,” and such time, which term shall also indicate any later date or such subsequent time to which the expiration of the Offer is extended in accordance with the terms of this Agreement) of twenty (20) business days (as defined , the “Expiration Date”). Merger Sub expressly reserves the right, in Rule 14d-1 under its sole discretion, to waive, in whole or in part, any Offer Condition or modify the Exchange Act) from the date of commencement terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer; provided, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01however, that, without the prior written consent of the Company, authorized by Merger Sub shall not (i) reduce the Special Committeenumber of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) change, modify or waive the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit A or modify or change any Offer Condition in a manner adverse in any material respect to any holders of Company Common Stock, (v) 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 (vii) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse in any material respect to any holders of Company Common Stock. Acquirer shall (which will not require Notwithstanding anything in this Agreement to the contrary, Merger Sub may, in its sole discretion, without consent of the Company), (A) without limiting Parent’s or Merger Sub’s obligations under the following sentence, extend the Offer on one or more occasions, in consecutive increments of up to five Business Days (or such longer period as the parties hereto may agree) each, if on any then-scheduled Expiration Date of the Offer any of the Offer Conditions shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived, (B) extend the Offer for the shortest time periods which it reasonably believes are necessaryany period required by any rule, in one regulation, interpretation or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) position of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer and (C) extend the Offer so that the number of shares of Company Common Stock that will be purchased by Merger Sub in the Offer, when combined with the Top-Up Shares to be issued to Merger Sub upon exercise of the Top-Up Option, would result in Merger Sub owning one more share than 90% of the shares of Company Common Stock outstanding. Parent and Merger Sub agree that, to the extent requested in writing by the Company prior to any then-scheduled Expiration Date of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to) (A) if any of the Offer Conditions set forth in clause (ii) of Exhibit A or in paragraph (a) or (b) of clause (iii) of Exhibit A shall not have been satisfied or, to the 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 five Business Days each (or such longer period as the parties hereto may agree), until such time as such Offer Conditions are satisfied (but not beyond the Termination Date) and (B) if any of the Minimum Tender Condition or the Offer Conditions set forth in paragraph (d) or (e) of clause (iii) of Exhibit A shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived on such then-scheduled Expiration Date, but all the other Offer Conditions set forth in Exhibit A shall be satisfied on such then-scheduled Expiration Date, extend the Offer on one or more occasions, in consecutive increments of up to five Business Days (or such longer period as the parties hereto may agree) each, for an aggregate period of time of not more than 20 Business Days; provided, however, that Merger Sub shall not be required to extend the Offer beyond the Termination Date; and provided further, that Merger Sub shall not be required to extend the Offer for more than three Business Days after the Company delivers or is required to deliver to Parent a notice with respect to a Takeover Proposal that has been received by the Company, any of its controlled Affiliates or any of their respective Representatives in accordance with Section 5.2, except to the extent that prior to the expiration of the Offer (as it may be extended by such three Business Day period), the Takeover Proposal giving rise to such notice has been withdrawn or the Board of Directors of the Company has rejected the Takeover Proposal giving rise to such notice and, in each case, the Board of Directors of the Company has reconfirmed the Company Recommendation and the withdrawal or rejection of such Takeover Proposal, and the reconfirmation of the Company Recommendation has been publicly announced by the Company. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of Tax pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the Expiration Date of the Offer. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right, in its sole discretion, to extend the Offer for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act following the Offer Closing, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. The Offer may not be terminated prior to its Expiration Date, unless this Agreement is validly terminated in accordance with Article VIII or Exhibit A. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.1, prior to the acceptance for payment of Company Common Stock tendered in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.1(a) shall affect any termination rights in Article VIII, as to the Agreement, or in Exhibit A, as to the Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO filed under cover of Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents Company shall comply in promptly furnish to Parent and Merger Sub all material respects with information concerning the provisions of applicable federal securities laws and, on Company required by the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion set forth in the Offer Documents. Acquirer Each of Parent, Merger Sub and the Company shall further 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 to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal Federal securities lawsLaws. Each Parent and Merger Sub shall promptly notify the Company upon the receipt of Acquirer 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 shall promptly correct the opportunity to participate in any information provided by it for use in substantive telephonic communications with the staff of the SEC related thereto. Prior to the filing of the Offer Documents if and to the extent that it shall have become false and misleading in (including any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed amendment or supplement thereto) with the SEC and to be disseminated to holders of Shares, in each case as and or dissemination thereof to the extent required by applicable federal securities laws. The stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given an a reasonable opportunity to review and comment upon the 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.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any comments thereon as soon as practicable) prior shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselOffer.
(d) Prior Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Share AcceptanceOffer 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, there shall have been contributed to Acquireras 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 have be treated for all purposes of this Agreement as having been properly tendered and not withdrawn in paid to the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member holder of the Acquirer Group)shares of Company Common Stock in respect of which such deduction and withholding was made by Merger Sub.
Appears in 1 contract
Samples: Merger Agreement (ARGON ST, Inc.)
The Offer. (a) Provided Unless this Agreement shall not have been terminated in accordance with Section 7.01 Article VII, Merger Sub shall (and subject to the conditions of this Agreement set forth in Section 6.01 as promptly as practicableParent shall cause Merger Sub to), but in no event less later than ten (10) business days Business Days after the public announcement of the execution of this Agreementdate hereof, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”)), an a tender offer to purchase all of the outstanding shares of common stock, par value $0.001 per share (“Common Stock”), of the Company (the “OfferShares”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 137.00 per ShareShare in cash, net to the seller in cash but subject to any required withholding taxes (such tender offer and price, or such other price per Share as they may from time to time be paid amended in accordance with this Agreement, the “Offer, being referred to herein as ” and the “Offer Price”,” respectively), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any obligations of its Subsidiaries pursuant Merger Sub to the Offer. Acquirer shall, on the terms (and subject of Parent to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), cause Merger Sub to) accept for payment and pay for any Shares validly tendered as soon as it is legally permitted and not withdrawn pursuant to do so under applicable law.
(b) The the Offer shall be made by means subject to the satisfaction or waiver (to the extent permitted under applicable Laws) of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto Annex A (the “Tender Offer Conditions”), and providing for an no other conditions. The initial expiration date of the Offer shall be midnight (Eastern Time) on the “Expiration Date”, which term shall also indicate any later date to that is twenty-five (25) Business Days (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer is extended was commenced (the initial “Expiration Time” and any expiration time and date established pursuant to an extension of the Offer in accordance with this Agreement, also an Expiration Time). Merger Sub expressly reserves the right (i) to increase the amount of twenty cash constituting the Offer Price and (20ii) business days to waive any condition to the Offer (as defined in Rule 14d-1 to the extent permitted under applicable Laws) or modify the Exchange Act) from the date of commencement terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by the Special Committee. Acquirer Merger Sub shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, reduce the number of Shares validly tendered and not withdrawn pursuant subject to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basisOffer, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date reduce the Offer is commencedPrice, Acquirer shall file with (C) waive the United States Securities and Exchange Commission Minimum Tender Condition, (the “SEC”D) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).add to
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 Upon the terms and subject to the conditions of this Agreement set forth in Section 6.01 (including ARTICLE VIII), as promptly as practicable, practicable (but in no event less later than ten (10) business days after the public announcement of the execution of this AgreementAugust 20, Acquirer 2010), Merger Sub shall, and Parent shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer; provided, being referred to herein as that the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable Company agrees that no shares of Company Common Stock owned by such seller. The the Company shall not tender Shares held by it or any of its Subsidiaries will be tendered pursuant to the Offer. Acquirer shallThe obligations of Merger Sub to, on the terms and subject of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the prior Offer are subject only to the satisfaction or waiver of the conditions (to the Offer set forth in Section 6.01, and to its rights to extend the Offer extent permitted under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(bthis Agreement) 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 Section 6.01 hereto and providing for an initial expiration date Exhibit A (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended as they may be amended in accordance with this Agreement, the “Offer Conditions”).
(i) of twenty The initial Expiration Date (20) business days (as defined in Rule 14d-1 Exhibit A) shall be 12:00 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer (determined pursuant to Rules 14d-1(g)(3) and 14d-2 under the Exchange Act) from ). Merger Sub expressly reserves the date of commencement right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer; provided, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01however, that, without the prior written consent of the Company, authorized by Merger Sub shall not (A) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require B) reduce the consent Offer Price or change the form of consideration payable in the CompanyOffer, (C) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (AD) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (E) extend the Offer except as provided in this Section 1.1 for a period of five (5) Business Days on each such occasion or (F) otherwise amend the shortest time periods which it reasonably believes are necessary, Offer in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion manner adverse to the extent permitted by Section 6.03) and (B) ifholders of Company Common Stock or that would reasonably be expected to prevent, on materially delay or impair the Expiration Dateability of Parent or Merger Sub to consummate the Offer, the number of Shares validly tendered and not withdrawn pursuant Merger or the other Transactions.
(ii) Notwithstanding anything in this Agreement to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basiscontrary, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, Merger Sub (A) the Offer Price may be increasedmay, in which event the Offer shall be extended its sole discretion (subject to the extent required by law in connection with such increaseobligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), in each case without the consent of the Company, extend the Offer on one or more occasions for a period of five (5) Business Days on each such occasion if, on any then-scheduled Expiration Date (defined in Exhibit A), any of the Offer Conditions shall not be satisfied or, in Merger Sub’s sole discretion, waived (if permitted under this Agreement) until such time as such condition or conditions are satisfied or waived and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date shall extend the Offer is commencedfor any period required by any rule, Acquirer shall file with regulation, interpretation or position of the United States Securities and Exchange Commission (the “SEC”), the staff thereof or the Nasdaq Stock Market (the “Nasdaq”) a applicable to the Offer, and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII.
(iii) In addition to the extension obligation set forth in Section 1.1(a)(ii)(B), Parent and Merger Sub agree that if on any scheduled Expiration Date of the Offer, the Minimum Tender Condition is not satisfied but all of the other Offer Statement Conditions set forth in Exhibit A are satisfied or, in Merger Sub’s sole discretion, waived, then Merger Sub shall, and Parent shall cause Merger Sub to, on Schedule TO with respect each of the first two such scheduled expiration dates, extend the Offer for periods of five (5) Business Days on each such occasion; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times, for five (5) Business Days on each such occasion, and in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII.
(iv) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Date (together defined in Exhibit A) (as it may be extended and re-extended in accordance with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”this Section 1.1(a). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents Price payable in respect of each share of Company Common Stock pursuant to the preceding sentence shall comply be paid net to the seller in all material respects with the provisions of applicable federal securities laws andcash, without interest, on the date filed with terms and subject to the SEC conditions of this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and on subject to the conditions of the Offer upon the expiration of the Offer is referred to in this Agreement as the “Offer Closing,” and the date first published, sent or given on which the Offer Closing occurs is referred to in this Agreement as 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 “Offer Closing Date.” Merger Sub expressly reserves the statements thereinright to, in light of the circumstances under which they were madeits sole discretion, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion in following the Offer Documents. Acquirer shall further take all steps necessary to cause Closing, extend the Offer Documents to be filed for a “subsequent offering period” in accordance with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D Rule 14d-11 under the Exchange Act Act; provided, however, such period (a “Filing Group”including any extensions thereof) as to which Acquirer or any of its members is a signatory shall not exceed twenty (except for 1530 Shares owned by one member of the Acquirer Group20).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 as promptly as practicableAgreement, but in no event less than ten (10) within five business days after the first public announcement of the execution of this Agreement, Acquirer Sub shall, and Parent shall commence (cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the “rules and regulations promulgated thereunder, the "Exchange Act”"), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any shares of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer subject to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date Exhibit A (the “Expiration Date”, which term "Offer Conditions"). The Offer shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of initially expire twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from after the date of commencement its commencement, unless this Agreement is terminated in accordance with Article VIII, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination. Without the prior written consent of the Offer. Acquirer Company, Sub shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or (i) impose conditions to the Offer in addition to those set forth the Offer Conditions, (ii) modify or amend the Offer Conditions or any other term of the Offer in Section 6.01a manner adverse to the holders of shares of Common Stock, (iii) waive or amend the Minimum Condition (as defined in Exhibit A), (iv) reduce the number of shares of Common Stock subject to the Offer, (v) reduce the Per Share Amount, (vi) except as provided in the following sentence, extend the Offer, if all of the Offer Conditions are satisfied or waived, or (vii) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer at any time, and from time to time, (i) if at the then scheduled expiration date of the Offer any of the conditions to Sub's obligation to accept for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has payment and pay for shares of Common Stock shall not by then have been satisfied or waived, until such time as such conditions are satisfied or waived; (ii) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or its staff applicable to the Offer; or (iii) if all Offer Conditions are satisfied or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, but the number of Shares shares of Common Stock tendered is less than 90% of the then outstanding number of shares of Common Stock, for an aggregate period of not more than 10 business days (for all such extensions) beyond the latest expiration date that would be permitted under clause (i) or (ii) of this sentence. So long as this Agreement is in effect and the Offer Conditions have not been satisfied or waived, Sub shall, and Parent shall cause Sub to, cause the Offer not to expire. Subject to the terms and conditions of the Offer (but subject to the right of termination in accordance with Article VIII), Sub shall, and Parent shall cause Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) as soon as practicable after the expiration of the Shares that are outstanding and not held by any member of a Filing Group Offer.
(determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10b) business days, notwithstanding that all the conditions to the Offer were satisfied as of On the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer Parent and Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal (such Schedule 14D-1 and related summary advertisementthe documents therein pursuant to which the Offer will be made, together with any supplements or amendments and supplements thereto, collectively the “"Offer Documents”"). The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC. The Offer Documents shall comply as to form in all material respects with the provisions requirements of applicable federal securities laws the Exchange Act, and, on the date filed with the SEC and on the date first published, sent or given to the Company’s 's stockholders, the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be is made by Acquirer Parent or Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Sub and the Company shall agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior respect, and each of Parent and Sub further agrees to the Expiration Date and Acquirer further shall 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 Sharesshares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company Parent and its counsel shall be given an opportunity Sub agree to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any comments that Acquirer Parent, Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after upon receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselcomments.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided this The Merger Agreement shall not have been terminated in accordance with Section 7.01 and subject to provides for the conditions commencement of this Agreement set forth in Section 6.01 the Offer as promptly as practicable, but in no event less later than ten (10) five business days after the initial public announcement of the execution of this the Merger Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any Merger Agreement provides that the obligation of its Subsidiaries pursuant Parent to, and of Parent to the Offer. Acquirer shallcause Purchaser to, on the terms and subject to the prior satisfaction or waiver of the conditions to consummate the Offer set forth in Section 6.01and accept for payment, and to its rights to extend the Offer under Section 1.01(b)pay for, accept for payment and pay for any Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect subject only to the exercise conditions set forth above in Section 5 (the "Offer Conditions") (any of which may be waived in whole or conversion of all optionsin part by Purchaser in its sole discretion; provided, rights and securities exercisable or convertible into voting securities however, that Purchaser may not waive the Minimum Condition (as defined above in Section 5) without the prior written consent of the Company). Purchaser expressly reserved in the Merger Agreement the right, extend subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, neither Parent nor Purchaser may (i) reduce the number of Shares subject to the Offer; (ii) reduce the Offer for up Price; (iii) add to ten or modify the Offer Conditions; (10iv) business daysexcept as provided in the next paragraph, notwithstanding that all change the conditions Expiration Time of the Offer; (v) change the form of consideration payable in the Offer; or (vi) amend, alter, add or waive any term of the Offer in any manner adverse to the Offer were satisfied as holders of the Shares. Notwithstanding the foregoing, if on any scheduled Expiration Time of the Offer, which shall initially be 20 business days after the commencement date such extension. In additionof the Offer, (A) all Offer Conditions have not been satisfied or waived, the Offer Price may be increasedMerger Agreement provides that Purchaser may, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer mayat the request of the Company shall, under from time to time, extend the terms Expiration Time of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 and Purchaser may, without the consent of the Exchange Act following the Share Acceptance.
(c) On the date Company, extend the Offer is commencedfor any period required by any rule, Acquirer shall file with regulation, interpretation or position of the United States Securities and Exchange Commission (SEC or the “SEC”) a Tender Offer Statement on Schedule TO with respect SEC staff applicable to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”)Offer. The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall 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 Merger Agreement provides that subject only to the Company’s stockholdersconditions set forth above in Section 5, Purchaser shall, and Parent 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 thereincause Purchaser to, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to practicable after the filing thereof with expiration of the SEC. In additionOffer, Acquirer shall provide to the Company accept for payment, and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptancepay for, there shall have been contributed to Acquirer, or shall have been properly all Shares validly tendered and not withdrawn in that Purchaser becomes obligated to accept for payment pursuant to the Offer. The Merger. The Merger Agreement provides that upon the terms and subject to the conditions set forth in such agreement, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as and pursuant to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member Section 92A.250 of the Acquirer GroupNevada Revised Statutes (the "NRS"), at the Effective Time (as defined below) (i) Purchaser shall be merged with and into the Company and the separate existence of Purchaser shall cease; (ii) the Company shall continue as the Surviving Corporation (the "Surviving Corporation") and shall continue to be governed by the laws of the State of Nevada; and (iii) the separate corporate existence of the Company shall continue unaffected by the Merger.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.01, Merger Sub shall, and subject to Parent shall cause Merger Sub to, on or before the conditions of this Agreement set forth in Section 6.01 as promptly as practicable, but in no event less than date that is ten (10) business days Business Days after the date of the initial public announcement of the execution of this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. .
(b) The Company shall not tender Shares held by it or any obligations of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01Merger Sub to, and of Parent to its rights to extend the Offer under Section 1.01(b)cause Merger Sub to, accept for payment and pay for any Shares tendered as soon as it pursuant to the Offer is legally permitted subject to do so under applicable law.
(b) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth and the satisfaction or waiver (as provided in this Agreement and Section 1.01(c) below) of the conditions set forth in Section 6.01 hereto and providing for an initial expiration date Annex I (the “Offer Conditions”) (without limiting the right of Merger Sub to terminate, extend or modify the Offer in accordance with the terms of this Agreement). On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) as soon as practicable after the Expiration Date”, which term shall also indicate any later Date (as defined below) and in compliance with applicable Law (as defined below). The acceptance for payment of Shares pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date to and time at which the Offer Closing occurs is extended referred to in accordance with this Agreement) of twenty (20) business days (Agreement as defined in Rule 14d-1 under the Exchange Act) from “Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub on the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease Closing funds necessary to purchase and pay the number of Cash Consideration for any and all Shares sought in the Offer, amend the conditions that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer set forth and this Agreement.
(c) The Offer Conditions are for the sole benefit of Parent and Merger Sub, and Parent and Merger Sub may waive, in Section 6.01 whole or impose conditions in part, any Offer Condition at any time and from time to time, in their sole and absolute discretion, other than the Offer in addition to those set forth in Section 6.01Minimum Condition, without which may be waived by Parent and Merger Sub only with the prior written consent of the Company. Parent and Merger Sub expressly reserve the right to waive any of the Offer Conditions, authorized to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided that, unless otherwise provided in this Agreement or previously approved by the Special Committee. Acquirer Company in writing, Parent and Merger Sub shall not: (which will not require i) decrease the consent Offer Price or change the form of consideration payable in the Company)Offer, (Aii) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, decrease the number of Shares validly tendered and not withdrawn pursuant sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer is less than eighty-five percent Conditions or amend any Offer Condition, (85%iv) waive or amend the Minimum Condition, (v) amend any other term of the Shares Offer in a manner that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect is adverse to the exercise holders of Shares, or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), (vi) extend the Offer for up to ten Expiration Date (10as defined below) business days, notwithstanding that all the conditions to the Offer were satisfied except as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required or permitted by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share AcceptanceSection 1.01(e).
(cd) On the date the Offer is commenced, Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, file with the United States U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The such Schedule TO shall contain or shall incorporate by reference and the documents included therein pursuant to which the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC ) and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to the holders of Shares, in each case Shares as and to the extent required by applicable federal securities lawsLaw. The Company hereby consents to the inclusion of the recommendation of the Company Board that the Company’s stockholders accept the Offer and tender their Shares pursuant to the Offer (the “Company Board Recommendation”) in the Offer Documents. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Offer Documents to comply as to form in all material respects with the requirements of applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company and the holders of Shares that may be required to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 1.01(d), including communication of the Offer to the record and beneficial holders of Shares. Each of Acquirer and the Company shall parties agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and or misleading in any material respect prior respect, and Parent and Merger Sub further agree to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any written comments (and shall orally describe any oral comments) that Acquirer Parent, Merger Sub or its their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the holders of Shares, or responding to any comments of the SEC with respect to the Offer Documents, Parent and copies of Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any written responses comments provided by the Company. Parent and telephonic notification of Merger Sub shall use reasonable best efforts to respond promptly to any verbal responses by Acquirer or its counselsuch SEC comments.
(de) Prior Subject to the Share Acceptanceterms and conditions set forth in the Offer Documents, there the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 1.01(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been contributed extended pursuant to, and in accordance with, this Section 1.01(e) or as may be required by applicable Law, the time and date to Acquirerwhich the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 1.01(e), the “Expiration Date”). Notwithstanding the foregoing, (i) if, on the then-effective Expiration Date, any of the Offer Conditions have not been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of not more than ten (10) Business Days each (as defined below) (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree, in order to permit the satisfaction of the Offer Conditions (it being understood, for the avoidance of doubt, that the Offer shall not be extended pursuant to this clause (i) if all Offer Conditions have been properly satisfied or waived), and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or necessary to resolve any comments of the SEC or its staff applicable to the Offer or the Offer Documents; provided that, in the case of clauses (i) and (ii), Merger Sub shall not in any event be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the Outside Date (as defined below). Nothing in this Section 1.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Company, Parent or Merger Sub to terminate this Agreement pursuant to Section 8.01. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within one (1) Business Day of such termination) terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, prior to the acceptance for payment of Shares tendered and not withdrawn in the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares beneficially owned to the registered holders thereof.
(f) At or prior to the Acceptance Time, Parent will authorize and duly adopt, execute and deliver, and will ensure that a duly qualified Rights Agent executes and delivers, the CVR Agreement, subject to any reasonable revisions to the CVR Agreement that are requested by such Rights Agent (provided that such revisions are not, individually or in the aggregate, detrimental to any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer GroupCVR holder).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Durata Therapeutics, Inc.)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable but in no event less later than ten (10) five business days after the date of the public announcement of by Parent and the execution Company of this Agreement, Acquirer Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as with the “initial scheduled expiration date of the Offer Price”), (subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable the extensions permitted by such sellerthis Agreement) being the 20th business day after commencement. The Company shall not tender obligation of Purchaser to, and of Parent to cause Purchaser to, commence the Offer and accept for payment, and pay for, any Shares held by it or any of its Subsidiaries tendered pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer subject only to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date Exhibit A (the “Expiration Date”"Offer Conditions") (any of which may be waived in whole or in part by Purchaser in its sole discretion, which term except that Purchaser shall also indicate any later date to which not waive the Offer is extended in accordance with this Agreement) of twenty (20) business days Minimum Condition (as defined in Rule 14d-1 under Exhibit A) without the Exchange Actconsent of the Company) from and to the date terms and conditions of commencement this Agreement. Purchaser expressly reserves the right to modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by Purchaser shall not (i) reduce the Special Committeenumber of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) increase or reduce the dealer's soliciting fee, (iv) amend or add to the Offer Conditions, (v) except as provided in the last sentence of this paragraph, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in any manner adverse to the holders of the Shares. Acquirer Subject to the terms and conditions of the Offer and this Agreement, Purchaser shall accept for payment, and pay for, all Shares validly tendered pursuant to the Offer that Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer (which will not require such date, the "Takedown Date"). Notwithstanding the foregoing, Purchaser may, without the consent of the Company), (i) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer as a result of an increase in the Offer Price by Purchaser in light of a bona fide competing offer from a third party for some or all of the Shares and (ii) (A) extend the Offer for the shortest time periods which it reasonably believes are necessarya period, in one or the aggregate, of not more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) than five business days if, on at the Expiration Dateinitial scheduled expiration date of the Offer, the number of Shares validly tendered and not withdrawn pursuant to the Offer is are less than eighty-five percent (85%) 90% of the outstanding Shares that are outstanding and not held (B) following the period contemplated by clause (ii) (A) (the "Initial Extension Period") if any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company)Offer Conditions have not been waived or satisfied, extend the Offer on one or more occasions for up periods not to ten (10) exceed five business daysdays until January 31, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition2000; provided that, (Ax) if at the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms expiration date of the Offer, provide for a subsequent offering period of up as so extended, the Offer Conditions have been satisfied or waived (including the deemed waivers described in clauses (y) and (z) below), Purchaser shall not continue to ten extend the Offer (10unless required by clause (i), above), (y) business days in accordance with Rule 14d-11 following the Initial Extension Period, Purchaser shall be deemed to have waived satisfaction of the Exchange Act conditions set forth in paragraphs (b), (e), (f) and (h) of Exhibit A hereto with respect to matters existing on or before the last day of the Initial Extension Period and (z) in the event Purchaser extends the Offer after the Initial Extension Period following written notice from the Share AcceptanceCompany of an event constituting a Material Adverse Change, Purchaser shall be deemed to have waived satisfaction of the conditions set forth in paragraph (c) of Exhibit A hereto with respect, and only with respect, to the event for which it has received such written notice; provided further, that all time periods set forth above in this sentence shall be tolled, at the election of Purchaser, during the pendency of the No Takedown Period (as defined in Section 6.2(b) below).
(ca) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Purchaser shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal (such Schedule 14D-1 and related summary advertisementthe documents included therein pursuant to which the Offer will be made, together with any supplements or amendments and supplements thereto, collectively the “"Offer Documents”"). The Parent and Purchaser agree that the Offer Documents shall comply in all material respects with the provisions Securities Exchange Act of applicable federal securities laws and1934 (the "Exchange Act"), on and the date filed with rules and regulations promulgated thereunder and the SEC and Offer Documents, on the date first published, sent or given to the Company’s '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 shall be covenant is made by Acquirer Parent or Purchaser with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Purchaser and the Company shall agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior respect, and Parent and Purchaser further agree to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe 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 an reasonable opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the their filing thereof with the SECSEC or dissemination to the stockholders of the Company. In addition, Acquirer shall Parent and Purchaser agree to provide to the Company and its counsel in writing any comments that Acquirer Parent, Purchaser or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselcomments.
(db) Prior Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.1 and subject to none of the conditions of this Agreement events set forth in Section 6.01 as promptly as practicableAppendix A to this Agreement shall have occurred and be existing, but in no event less than within ten (10) business days Business Days after the public announcement of the execution and delivery of this Agreement, Acquirer Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an ) a cash tender offer to acquire any and all Shares (including the “Offer”related Stock Purchase Rights) to purchase for cash all of at the issued and outstanding Shares at a price of $2.25 per Share, net Offer Price. Subject to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms Minimum Condition and subject to the prior satisfaction or waiver of the other conditions to the Offer set forth in Section 6.01Appendix A to this Agreement, and to its rights to extend Purchaser shall consummate the Offer under Section 1.01(b), in accordance with its terms and accept for payment and pay for Shares tendered pursuant to the Offer as soon as it Purchaser is legally permitted to do so under applicable law.
(b) . The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing Purchase and shall be subject only to the Minimum Condition and the other conditions set forth in Appendix A to this Agreement and shall reflect the other terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer Purchaser shall not decrease amend or waive the Offer Price or Minimum Condition and shall not decrease the number of Shares sought in the Offer, amend change the conditions form of or decrease the amount of consideration to the Offer set forth in Section 6.01 or be paid, impose conditions to the Offer in addition to those set forth in Section 6.01Appendix A, make any other change in the Offer which is materially adverse to the Company's stockholders or extend the Offer (except as provided in this Agreement), without the prior written consent of the Company, authorized by . If on the Special Committee. Acquirer shall (which will not require the consent expiration date of the Company)Offer (the "Expiration Date") as initially scheduled, (A) which shall be twenty Business Days after the date the Offer is commenced, all conditions to the Offer are not then satisfied or waived, Purchaser may, from time to time, in its sole discretion, extend the Expiration Date. Notwithstanding the foregoing, Purchaser shall extend the Offer for the shortest from time periods which it reasonably believes are necessaryto time until December 31, in one or more such periods2000 if, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion and to the extent permitted by Section 6.03) and (B) ifthat, on at the Expiration DateDate as initially scheduled, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by or any member of a Filing Group (determined on a fully diluted basisextension thereof, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were set forth in Appendix A to this Agreement have not been satisfied as or waived. Furthermore, if at December 31, 2000, the termination of the date such extensionwaiting period under the HSR Act shall be the only condition to the Offer which is not then satisfied or waived, Purchaser shall extend the Expiration Date from time to time until February 28, 2001. In addition, (A) Purchaser may increase the amount it offers to pay per Share in the Offer, and the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company. In addition, and Purchaser may extend the Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 under the Exchange Act, of not more than twenty Business Days to meet the objective (Bwhich is not a condition to the Offer) Acquirer maythat there be validly tendered, under in accordance with the terms of the Offer, provide for and not withdrawn prior to the Expiration Date (as so extended) a subsequent offering period number of up to ten (10) business days in accordance Shares which, together with Rule 14d-11 Shares then owned by Parent and Purchaser, represents at least ninety percent of the Exchange Act following the Share Acceptanceoutstanding Shares.
(cb) On the date the Offer is commenced, Acquirer Parent and Purchaser shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement tender offer statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”)Offer. The Schedule TO shall contain or shall incorporate by reference will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement advertisement.
(the “Schedule TO, the Offer to Purchase c) Parent and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent and Purchaser, on the one hand, and the Company shall 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 and or misleading in any material respect prior to the Expiration Date and Acquirer further shall respect. Purchaser 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 Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an the opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof initial Schedule TO before it is filed with the SEC. In addition, Acquirer shall Parent and Purchaser will provide to the Company and its counsel in writing with any comments or other communications, whether written or oral, that Acquirer Parent, Purchaser or its their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Documents, promptly after the receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselother communications.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have previously been validly terminated in accordance with Section 7.01 9.1, and subject to the terms and conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicablepracticable after the date hereof, but in no any event less than ten within five (105) business days after the public announcement of the execution date of this Agreement, Acquirer Parent shall cause Sub to, and Sub shall, commence (within the meaning of Rule 14d-2 14d−2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer () the “Offer”) to purchase Offer for cash all of the issued and outstanding Company Shares at for a price per share of $2.25 per Share, net Common Stock equal to the seller in cash (such price, or such other price per Share as may be paid in Offer Price. The date on which Sub commences the Offer, being within the meaning of Rule 14d−2 under the Exchange Act, is referred to herein in this Agreement as the “Offer PriceCommencement Date”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The As promptly as practicable on the later of: (i) thirty business days after the Offer shall be made by means Commencement Date (unless extended in accordance with Section 1.1(d) hereof), (ii) the earliest date as of an offer which Sub is permitted under applicable law to purchase accept for payment Shares tendered pursuant to the Offer, and (iii) the “Offer to Purchase”) containing the terms set forth in this Agreement and earliest date as of which each of the conditions set forth in Section 6.01 hereto and providing for an initial expiration date Annex I (the “Expiration DateOffer Conditions”) shall have been satisfied or waived, which term Sub shall also indicate any later date (and Parent shall cause Sub to) accept for payment all Shares tendered pursuant to which the Offer is extended (and not validly withdrawn). The obligation of Sub to accept for payment, and pay for, Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions. As promptly as practicable after the acceptance for payment of any Shares tendered pursuant to the Offer, Sub shall pay for such Shares.
(c) Parent and Sub expressly reserve the right to waive, in accordance with this Agreement) of twenty (20) business days (as defined whole or in Rule 14d-1 under part, any Offer Condition or modify the Exchange Act) from the date of commencement terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer; provided, amend the conditions however, that notwithstanding anything to the Offer set forth contrary contained in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01this Agreement, neither Parent nor Sub shall (without the prior written consent of the Company, authorized ):
(i) change or waive the Minimum Condition (as defined in Annex I);
(ii) decrease the number of Shares sought to be purchased by Sub in the Special Committee. Acquirer shall Offer;
(which will not require iii) reduce the consent Offer Price;
(iv) extend or otherwise change the expiration date of the CompanyOffer (except to the extent required or permitted pursuant to Section 1.1(d));
(v) change the form of consideration payable in the Offer; or
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects, or would reasonably be expected to adversely affect, the holders of Shares in any material respect.
(d) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Date”) that is thirty (30) business days (calculated as set forth in Rule 14d−1(g)(3) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, (Ai) Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the shortest time periods which it reasonably believes are necessary, in one SEC or more such periods, if any, to satisfy any such condition its staff or the NASDAQ Capital Market that has not by then been satisfied (or waived by Acquirer in its discretion is applicable to the extent permitted by Section 6.03) and Offer; provided, that in no event shall Sub be required to extend the Offer beyond the Outside Date, (Bii) if, on the Initial Expiration Date, the number Date or any subsequent date as of Shares validly tendered and not withdrawn pursuant to which the Offer is less scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Sub shall extend the Offer for one or more periods ending no later than eighty-five percent the Outside Date, to permit such Offer Condition to be satisfied; provided, however, that no individual extension shall be for a period of more than three (85%3) of the Shares that are outstanding and not held business days (unless otherwise consented in writing by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), and (iii) if an Acquisition Proposal has been submitted to the Company, (x) Sub may extend the Offer for up to ten until six business days following the rejection by the Company of the Acquisition Proposal and (10y) business days, notwithstanding that all the conditions to Sub shall extend the Offer were satisfied as at the request of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide Company for a subsequent offering period of up to no more than ten (10) business days in accordance with Rule 14d-11 of to permit the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) Company to take a Tender Offer Statement on Schedule TO position with respect to the Offer Acquisition Proposal (together with all amendments or any amendment thereof) and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by for three business days after the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff has taken a position with respect to the Acquisition Proposal; provided, that Sub shall not be required to extend the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselbeyond the Outside Date.
(de) Prior The Offer may be terminated prior to the Share Acceptanceits expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn but only if this Agreement is validly terminated in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)accordance with Section 9.1.
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 and this Agreement not having been terminated, Purchaser shall commence, as promptly as practicable, but in no event less than ten (10) business days after the public announcement of the execution of this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer. The obligation of Purchaser to commence the Offer and to accept for payment, being referred and to herein as the “Offer Price”), subject to reduction only pay for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any shares of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on Offer shall be subject to the satisfaction of the conditions set forth in EXHIBIT A and the terms and subject conditions of this Agreement (the "OFFER CONDITIONS"). Subject to the prior satisfaction or waiver provisions of this Agreement, the Offer shall initially expire on the 20th business day from and after the date the Offer is commenced, including the date of the conditions to commencement of the Offer set forth as the first business day in Section 6.01accordance with Rule 14d-2, and to its rights to extend unless this Agreement is terminated in accordance with ARTICLE 8, in which case the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law(whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) The Offer shall be made by means Purchaser expressly reserves the right to waive any condition set forth on Exhibit A without the consent of an offer the Company, and to purchase (the “Offer to Purchase”) containing make any other changes in the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01However, without the prior written consent of the Company, authorized by Purchaser shall not (i) reduce the Special Committeemaximum number of Shares subject to the Offer, (ii) decrease the Per Share Amount, (iii) change the form of consideration payable in the Offer, or (iv) amend or modify the Offer Conditions in any manner adverse to the holders of Shares. Acquirer shall (which will not require Notwithstanding the foregoing, Purchaser may, without the consent of the Company, extend the Offer at any time and from time to time: (i) if at the then scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or waived, until such time as all such conditions shall have been satisfied or waived; (ii) for any period required by any statute or rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or its staff applicable to the Offer; (iii) for any period required by applicable law in connection with an increase in the consideration to be paid pursuant to the Offer; and (iv) from time to time, for an aggregate period of not more than ten (10) business days (for all such extensions under this clause (iv)) beyond the latest expiration date that would be permitted under clause (i), (Aii) extend or (iii) of this sentence. So long as this Agreement is in effect and the Offer Conditions have not been satisfied or waived, Purchaser shall cause the Offer not to expire. Subject to and in accordance with the terms and conditions of the Offer and this Agreement (but subject to the right of termination in accordance with ARTICLE 8), Purchaser shall accept for the shortest time periods which it reasonably believes are necessarypayment and pay for, in one or more such periodsaccordance with the terms of the Offer, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of all Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) as soon as practicable after the expiration of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Offer. In addition to the exercise or conversion of all optionsforegoing, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer Purchaser may provide for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended a "subsequent offering period" to the extent required by law provided in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) Act, as in effect as of January 24, 2000, after the purchase of Shares pursuant to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)Offer.
Appears in 1 contract
The Offer. (ai) Provided Unless this Agreement shall not have been terminated in accordance with Section 7.01 Article VIII, Parent will cause Purchaser to, and subject to Purchaser will, as promptly as practicable after the conditions date of this Agreement set forth in Section 6.01 as promptly as practicable, (but in no event less later than ten the tenth (1010th) business days after Business Day following the public announcement of the execution date of this Agreement), Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer () the “Offer”) Offer to purchase for cash any (subject to the Minimum Tender Condition) and all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject . The obligations of Purchaser (and of Parent to reduction only cause Purchaser) to accept for payment and to pay for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall Shares validly tendered and not tender Shares held by it or any of its Subsidiaries properly withdrawn pursuant to the Offer. Acquirer shall, on the terms and Offer will be subject only to the prior satisfaction or waiver of the those conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer to purchase Annex I (the “Offer to PurchaseConditions”). Unless extended in accordance with Section 1.1(a)(ii), the Offer will expire on the twentieth (20th) containing the terms Business Day (calculated as set forth in this Agreement Rule 14d-1(g)(3) under the Exchange Act) following (and including the conditions set forth day of) the commencement of the Offer (the “Initial Expiration Date”), or, if the Offer has been extended in accordance with Section 6.01 hereto 1.1(a)(ii), at the time and providing for an initial expiration 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 Section 1.1(a)(ii), the “Expiration Date”, which term shall also indicate ). Purchaser expressly reserves the right (but will not be obligated) at any later date time or from time to which time in its sole discretion to waive any Offer Condition or modify or amend the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement terms of the Offer. Acquirer shall not decrease , including the Offer Price or decrease the number of Shares sought in the OfferPrice, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which Purchaser will not require (A) decrease the consent Offer Price, or change the form of the Companyconsideration payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer, (C) amend or waive the Minimum Tender Condition, (D) add to the conditions set forth on Annex I, (E) modify the conditions set forth on Annex I in a manner adverse to the holders of Shares, (F) extend the Expiration Date of the Offer except as required or permitted by Section 1.1(a)(ii), (G) make any other change in the terms or conditions of the Offer that is adverse to the holders of Shares or (H) increase the Offer Price by an increment of less than $0.25.
(ii) Subject to the terms and conditions of this Agreement and to the satisfaction or waiver (to the extent permitted hereunder) by Purchaser of the Offer Conditions as of any scheduled Expiration Date, Purchaser will, and Parent will cause Purchaser to, accept for purchase and pay for any (subject to the Minimum Tender Condition) and all Shares validly tendered (and not properly withdrawn) pursuant to the Offer promptly after such scheduled Expiration Date (the date and time of acceptance for payment, the “Acceptance Time”). Purchaser (A) will extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number periods of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period time of up to ten (10) business days in accordance with Rule 14d-11 Business Days per extension if at any scheduled Expiration Date any of the Exchange Act following the Share Acceptance.
Offer Conditions is not satisfied and has not been waived; and (cB) On the date will extend the Offer is commencedfor any period required by any rule, Acquirer shall file with regulation, interpretation or position of the United States Securities and Exchange Commission (the “SEC”) or the staff thereof or The NASDAQ Stock Market LLC (“Nasdaq”) applicable to the Offer; provided, that under no circumstances will Purchaser be required to, nor may Purchaser without the prior written consent of the Company, extend the Offer beyond the Outside Date. The Company shall register (and shall instruct its transfer agent to register) the transfer of the Shares accepted for payment by Purchaser effective immediately after the Acceptance Time.
(b) On the date of commencement of the Offer, Parent and Purchaser will file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together collectively with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference ) with respect to the Offer that will include as exhibits the offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (the “Schedule TO, and other ancillary Offer documents and instruments pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisement, together will be made (collectively with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC ) and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause will disseminate the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaws. The Company agrees to furnish promptly to Parent and Purchaser all information concerning the Company and required by the securities Laws to be set forth in the Offer Documents. The Company will be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC. Parent and Purchaser agree to (i) promptly provide the Company and its counsel with a copy of any written comments (or a description of any oral comments) received by Parent, Purchaser or their counsel from the SEC or its staff with respect to the Offer Documents, (ii) consult with the Company regarding any such comments prior to responding thereto and (iii) provide the Company with copies of any responses to any such comments. Parent and Purchaser agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares to the extent required by applicable federal securities Laws. Each of Acquirer Parent, Purchaser and the Company shall agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have has become aware that such information has become false and or misleading in any material respect prior respect. Parent and Purchaser further agree to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall Laws.
(c) Parent will provide or cause to be given an opportunity provided to review and comment upon Purchaser on a timely basis the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
(d) Purchaser will not terminate the Offer Documents prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to ARTICLE VIII. If this Agreement is terminated pursuant to ARTICLE VIII, Purchaser will, and Parent will cause Purchaser to, promptly (and shall provide in any comments thereon as soon as practicableevent within twenty-four (24) hours of such termination) terminate the Offer and will not acquire any Shares pursuant thereto. If the Offer is terminated by Purchaser, or this Agreement is terminated pursuant to ARTICLE VIII prior to the filing thereof acquisition of Shares in the Offer, Purchaser will promptly (and in any event within two (2) Business Days of such termination) return, and will cause any depositary or other agent acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(e) The (i) Offer Price and (ii) Merger Consideration will be adjusted appropriately to reflect any reclassification, recapitalization, stock split (including a reverse stock split), or combination, exchange or readjustment of shares, or any stock dividend or stock distribution occurring (or for which a record date is established) after the date hereof and prior to (A) the payment by Purchaser for Shares validly tendered and not properly withdrawn in connection with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff Offer (with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer Price) or its counsel(B) the Effective Time (with respect to the Merger Consideration).
(df) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered For purposes of this Agreement and not withdrawn in the Offer, all any Shares beneficially owned subject to notices of guaranteed delivery will be deemed not to be validly tendered into the Offer unless and until the Shares underlying such notices of guaranteed delivery are delivered to Purchaser or to an agent of Purchaser and received by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as depositary prior to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member the expiration of the Acquirer Group)Offer.
Appears in 1 contract
The Offer. (a) Section 2.1 The Offer. Provided that this Agreement shall not have been terminated in accordance with Section 7.01 Article VIII hereof and subject to so long as none of the conditions events set forth on Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing, as promptly as practicable after the date of this Agreement set forth in Section 6.01 as promptly as practicable, (but in no any event less not later than ten seven (107) business days Business Days after the first public announcement of the execution and delivery of this Agreement), Acquirer Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act) from the Offer. The initial expiration date of the Offer shall be the twentieth (20th) Business Day following the date the Offer is commenced within the meaning of commencement Rule 14d-2 under the Exchange Act. The obligation of Sub to accept for payment and to pay for any Ordinary Shares tendered in the Offer and not withdrawn shall be subject only to the Tender Offer Conditions, any of which, subject to the proviso below, may be waived by Parent or Sub in whole or in part in their sole discretion. The Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Conditions. Parent and Sub expressly reserve the right to modify the terms of the Offer. Acquirer , provided, however, that neither Parent nor Sub shall (and Parent shall cause Sub not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01to), without the prior written consent of the Company, authorized by (i) reduce the Special Committee. Acquirer shall number of Ordinary Shares to be purchased pursuant to the Offer, (which will not require ii) reduce the consent Ordinary Share Offer Price, (iii) impose any additional conditions to the Offer, (iv) change the form of consideration payable in the Offer, (v) make any change to the terms of the Company)Offer, including without limitation the Tender Offer Conditions, which is materially adverse in any manner to the holders of the Ordinary Shares, (vi) amend or waive the Minimum Condition, except that Parent or Sub may, at any time, amend the Minimum Condition to equal the number of Ordinary Shares representing a majority of the total number of votes of the outstanding Ordinary Shares on a fully-diluted basis or (vii) extend the expiration date of the Offer, provided, however, that Parent or Sub may extend the expiration date of the Offer: (A) extend as required by any rule, regulation or interpretation of the Commission; or (B) in the event that any condition to the Offer for the shortest time periods which it reasonably believes are necessaryis not satisfied and, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) ifherein, on the Expiration Date, the number of Shares validly tendered and is not withdrawn pursuant to the Offer is less than eighty-five percent (85%) waived as of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities scheduled expiration date of the Company)Offer, extend the Offer for such successive periods for up to ten (10) business days, notwithstanding that all Business Days at a time (or such longer period as shall be approved by the conditions Company) until the earlier of the acceptance for payment of any Ordinary Shares pursuant to the Offer were satisfied as or the date (the "Offer Termination Date") that is sixty (60) days from the date of commencement of the Offer. Notwithstanding anything in the foregoing to the contrary, the Company may require Sub to extend the Offer on one occasion for a maximum period of ten (10) days if at the scheduled expiration date such extensionof the Offer, the Tender Offer Conditions (assuming for this purpose that the Minimum Condition has not been amended in accordance with clause (vi) of the proviso contained above in this Section 2.1(a)) have not been satisfied. In addition, (Anotwithstanding anything in this Section 2.1(a) to the contrary, if not already disclosed in the Offer Price to Purchase (as defined below), Parent and Sub may be increased, in which event amend the Offer shall be extended Schedule TO (as defined below) to permit the extent required by law in connection with such increase, in each case without the consent announcement of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days as such term is defined in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D 14d-1 promulgated under the Exchange Act (a “Filing Group”the "Subsequent Offer Period")) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).Offer, and Sub
Appears in 1 contract
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 7.01 10.1 and subject to so long as none of the conditions of this Agreement events or circumstances set forth in Section 6.01 as promptly as practicableAnnex A hereto shall have occurred and be continuing, but in no event less not later than ten (10) the seventh business days after day following the date of public announcement of the execution of this Agreement, Acquirer Parent shall cause Subsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT")), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares Offer at a price of $2.25 per Share, net equal to the seller in cash (such price, or such other price per Share as may be paid in Common Stock Price for each share of Company Common Stock. The obligations of Subsidiary to consummate the Offer, being referred to herein as the “Offer Price”), subject accept for payment and to reduction only pay for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The shares of Company shall not tender Shares held by it or any of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on the terms Offer and subject not withdrawn prior to the prior satisfaction or waiver expiration of the Offer shall be subject solely to those conditions set forth in ANNEX A. It is agreed that the conditions to the Offer set forth on ANNEX A are solely for the benefit of Subsidiary and may be asserted only by Subsidiary and Subsidiary expressly reserves the right, in Section 6.01its sole discretion, and to its rights to extend the Offer under Section 1.01(b)waive any such condition; PROVIDED, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”HOWEVER, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, that without the prior written consent of the Company, authorized by Subsidiary shall not waive the Special CommitteeMinimum Condition (as defined in ANNEX A). Acquirer The initial expiration date of the Offer (the "INITIAL EXPIRATION DATE") shall be the 20th business day following the commencement of the Offer (which will not require within the meaning of Rule 14d-2 under the Exchange Act).
(b) Subsidiary expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer; PROVIDED, HOWEVER, that without the prior written consent of the Company), no modification or change may be made which (Ai) extend decreases the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied Common Stock Price (or waived by Acquirer in its discretion to the extent except as permitted by Section 6.031.5); (ii) and changes the form of consideration payable in the Offer (Bother than by adding consideration); (iii) if, on changes the Expiration Date, Minimum Condition; (iv) limits the number of Shares validly tendered and not withdrawn shares of Company Common Stock sought pursuant to the Offer is less than eighty-five percent Offer; (85%v) of changes the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the material conditions to the Offer were satisfied as in a manner adverse to the holders of the date such extension. In addition, Company Common Stock; or (Avi) the Offer Price may be increased, in which event the Offer shall be extended imposes additional material conditions to the extent required by law in connection with such increaseOffer. Notwithstanding the foregoing, in each case Subsidiary may, without the consent of the Company, (i) extend and re-extend the Offer on one or more occasions for such period as may be determined by Subsidiary in its sole discretion (B) Acquirer mayeach such extension period not to exceed 20 business days at a time), under if at the terms then-scheduled expiration date of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 Offer any of the Exchange Act following the Share Acceptance.
conditions to Subsidiary's obligations to accept for payment and pay for shares of Company Common Stock shall not be satisfied or waived; (cii) On the date extend and re-extend the Offer is commencedfor any period required by any rule, Acquirer shall file with regulation, interpretation or position of the United States Securities and Exchange Commission (the “"SEC”") or the staff thereof applicable to the Offer; and (iii) extend and re-extend the Offer on one or more occasions for an aggregate period of not more than 15 business days if the Minimum Condition has been satisfied but less than 90% of the outstanding Company Common Stock (on a Tender Offer Statement on Schedule TO with respect fully diluted basis) has been validly tendered and not properly withdrawn as of the Initial Expiration Date; provided, however, that from and after any extension pursuant to this clause (iii), Subsidiary shall be deemed to have waived the conditions to the Offer set forth in ANNEX A, other than the Minimum Condition and except insofar as the conditions relate to or are based upon (together with all amendments and supplements thereto and including x) the exhibits thereto, illegality of the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference consummation of the Offer to Purchase and a form of letter of transmittal and summary advertisement or the Merger; (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied y) breach by the Company for inclusion of any covenant contained in this Agreement; or (z) failure of any representation or warranty made by the Company in this Agreement to be true and correct as of the date of this Agreement. Notwithstanding the foregoing, if requested by the Company, Subsidiary shall, and Parent agrees to cause Subsidiary to, extend the Offer Documents. Acquirer shall further take all steps necessary to cause on one or more occasions (but in no event beyond the Outside Date (as defined in Section 10.1(b))) if at the then-scheduled expiration date of the Offer Documents any of the conditions to Subsidiary's obligations to accept for payment and pay for shares of Company Common Stock shall not be filed with the SEC satisfied or waived and to be disseminated to holders all such conditions are reasonably capable of Shares, in each case as and being satisfied. Subject to the extent required by applicable federal securities laws. Each of Acquirer terms and the Company shall promptly correct any information provided by it for use in conditions of the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall 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 Sharesthis Agreement, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly practicable after receipt expiration of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).the
Appears in 1 contract
Samples: Agreement and Plan of Merger (Candover Investments PLC)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10) seven business days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence (the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of the Offer shall be 12:00 midnight, New York City time, on the 20th business day (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer ) following the commencement (within the “Offer”) to purchase for cash all meaning of the issued and outstanding Shares at a price Rule 14d-2 of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease Merger Sub expressly reserves the right to waive any Offer Price Condition or decrease modify the number terms of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01any manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, authorized by Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require ii) reduce the consent Offer Price, (iii) change the form of consideration payable in the Offer, (iv) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (v) impose conditions or requirements to the Offer other than the Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (vi) except as otherwise provided in this Section 1.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vii) otherwise amend, modify or supplement any of the Company)terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more consecutive increments of not more than five business days each (or for such periodslonger period as may be agreed by the Company), if any, to satisfy at the scheduled expiration date of the Offer any such condition that has of the Offer Conditions (other than the Minimum Tender Condition) shall not by then have been satisfied (or waived, until such time as such conditions shall have been satisfied or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) ifextend the Offer for the minimum period required by any rule, on regulation or interpretation or position of the Expiration SEC or the staff thereof applicable to the Offer; provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. In addition, if at the number otherwise scheduled expiration date of Shares the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Merger Sub shall have the right to (and, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to) extend the Offer for one or more consecutive increments of not more than five business days each (or for such longer period as may be agreed by the Company); provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Merger Sub becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as soon as practicable after the expiration of the date such extensionOffer and, in any event, no more than three business days after the Acceptance Time. In addition, (A) The time at which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Offer Price is referred to as the “Acceptance Time”. The Offer may not be terminated prior to its expiration date (as such expiration date may be increasedextended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in which event accordance with Section 8.01. If this Agreement is terminated in accordance with Section 8.01 prior to the Acceptance Time, Merger Sub shall, and Parent shall cause Merger Sub to, immediately, irrevocably and unconditionally terminate the Offer and Merger Sub shall be extended neither acquire nor pay for shares of Company Common Stock pursuant to the extent required Offer. If the Offer is terminated or withdrawn by law Merger Sub in connection accordance with such increasethe terms of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and Parent and Merger Sub shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof. Nothing contained in each case without this Section 1.01(a) shall affect any termination rights set forth in Section 8.01.
(b) As promptly as practicable on the consent date of commencement (within the meaning of Rule 14d-2 of the Company, and (BExchange Act) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer Parent and Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any exhibits, supplements or amendments and supplements thereto, collectively the “Offer Documents”)) and shall disseminate the appropriate Offer Documents to the holders of Company Common Stock. The Offer Documents Company shall comply in furnish to Parent and Merger Sub all material respects with information concerning the provisions of applicable federal securities laws and, on Company required by the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion set forth in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior to the Expiration Date respect, and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal Federal securities lawsLaws. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Acquirer Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except with respect to any amendments after an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and copies of Merger Sub shall provide the Company and its counsel 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 and good faith consideration to any written responses and telephonic notification of any verbal responses comments made by Acquirer the Company or its counsel.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Prior Parent and Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Share AcceptanceOffer to any holder of shares of Company Common Stock such amounts as Parent or Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, there shall have been contributed to Acquireras amended (the “Code”), or any provision of state, local or foreign Tax Law. Amounts so withheld and paid over to the appropriate taxing authority shall have be treated for all purposes of this Agreement as having been properly tendered and not withdrawn paid to the holder of Company Common Stock in the Offer, all Shares beneficially owned by any member respect of Acquirer which such deduction or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)withholding was made.
Appears in 1 contract
Samples: Merger Agreement (AveXis, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 7.01 and 8.01, subject to the terms and conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10) business days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of the Offer shall be at the time that is one minute following 11:59 p.m., New York City time, on the date that is 20 business days (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer () after the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) first commenced (within the meaning of twenty (20) business days (as defined in Rule 14d-1 14d-2 promulgated under the Exchange Act) from ). Merger Sub expressly reserves the date of commencement right to waive, in its sole discretion, in whole or in part, any Offer Condition or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01except that, without the prior written consent of the Company, authorized by Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require ii) reduce the consent Offer Price, (iii) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in this Section 1.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vi) change the form or terms of consideration payable in the Offer, (vii) otherwise amend, modify or supplement any of the Company)terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more consecutive increments of not more than ten business days each (or for such periodslonger period as may be agreed to by Parent and the Company), if any, to satisfy at the scheduled expiration date of the Offer any such condition that has of the Offer Conditions (other than the Minimum Tender Condition) shall not by then have been satisfied (or waived, until such time as such conditions shall have been satisfied or waived by Acquirer in its discretion to (irrespective of whether the extent permitted by Section 6.03Minimum Tender Condition has been satisfied) and (B) ifextend the Offer for the minimum period required by any rule, on regulation or interpretation or position of the Expiration Date, SEC or the number of Shares validly tendered and not withdrawn pursuant staff thereof or The Nasdaq Global Market (“Nasdaq”) applicable to the Offer; provided that Merger Sub shall not be required to extend the Offer is less than eighty-five percent (85%) beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Shares that are outstanding Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not held have been satisfied, Merger Sub may elect to (and if so requested by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company, Merger Sub shall, and Parent shall cause Merger Sub to), extend the Offer for up one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed to ten by Parent and the Company); provided that the Company shall not request Merger Sub to, and Parent shall not be required to cause Merger Sub to, extend the Offer pursuant to this sentence on more than three (103) business daysoccasions; provided, notwithstanding further that all Merger Sub shall not, and shall not be required to extend the Offer beyond the Outside Date. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer were satisfied that Merger Sub becomes obligated to purchase pursuant to the Offer as promptly as practicable after the expiration of the date such extension. In addition, Offer (A) which shall be the next business day after the expiration of the Offer Price absent extenuating circumstances) and, in any event, no more than three business days after the expiration of the Offer. The date on which Merger Sub first irrevocably accepts for purchase the shares of Company Common Stock tendered in the Offer is referred to as the “Offer Closing Date”. The Offer may not be terminated or withdrawn prior to its expiration date (as such expiration date may be increasedextended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in which event accordance with Section 8.01. If this Agreement is validly terminated in accordance with Section 8.01, Merger Sub shall promptly terminate the Offer and return, and shall be extended cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the extent required by law registered holders thereof. Nothing contained in connection with such increase, this Section 1.01(a) shall affect any termination rights set forth in each case without Section 8.01.
(b) As promptly as reasonably practicable on the consent date of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up to ten Parent and Merger Sub shall (10i) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer include an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC ) and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause (ii) disseminate the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case Company Common Stock as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall 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 Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior respect, and to the Expiration Date correct any material omissions therefrom, and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Acquirer Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except from and after an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer the SEC or its counsel.
(d) Prior staff with respect to the Share AcceptanceOffer Documents, there shall have been contributed to Acquirer, or shall have been properly tendered Parent and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).Merger Sub shall
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 Upon the terms and subject to the conditions of this Agreement set forth in Section 6.01 (including ARTICLE VIII), as promptly as practicable, practicable (but in no event less later than ten (10) business days after the public announcement of the execution of this AgreementAugust 20, Acquirer 2010), Merger Sub shall, and Parent shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the “rules and regulations promulgated thereunder, the "Exchange Act”"), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer; provided, being referred to herein as that the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable Company agrees that no shares of Company Common Stock owned by such seller. The the Company shall not tender Shares held by it or any of its Subsidiaries will be tendered pursuant to the Offer. Acquirer shallThe obligations of Merger Sub to, on the terms and subject of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the prior Offer are subject only to the satisfaction or waiver of the conditions (to the Offer set forth in Section 6.01, and to its rights to extend the Offer extent permitted under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(bthis Agreement) 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 Section 6.01 hereto and providing for an initial expiration date Exhibit A (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended as they may be amended in accordance with this Agreement, the "Offer Conditions").
(i) of twenty The initial Expiration Date (20) business days (as defined in Rule 14d-1 Exhibit A) shall be 12:00 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer (determined pursuant to Rules 14d-1(g)(3) and 14d-2 under the Exchange Act) from ). Merger Sub expressly reserves the date of commencement right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer; provided, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01however, that, without the prior written consent of the Company, authorized by Merger Sub shall not (A) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require B) reduce the consent Offer Price or change the form of consideration payable in the CompanyOffer, (C) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (AD) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (E) extend the Offer except as provided in this Section 1.1 for a period of five (5) Business Days on each such occasion or (F) otherwise amend the shortest time periods which it reasonably believes are necessary, Offer in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion manner adverse to the extent permitted by Section 6.03) and (B) ifholders of Company Common Stock or that would reasonably be expected to prevent, on materially delay or impair the Expiration Dateability of Parent or Merger Sub to consummate the Offer, the number of Shares validly tendered and not withdrawn pursuant Merger or the other Transactions.
(ii) Notwithstanding anything in this Agreement to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basiscontrary, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, Merger Sub (A) the Offer Price may be increasedmay, in which event the Offer shall be extended its sole discretion (subject to the extent required by law in connection with such increaseobligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), in each case without the consent of the Company, extend the Offer on one or more occasions for a period of five (5) Business Days on each such occasion if, on any then-scheduled Expiration Date (defined in Exhibit A), any of the Offer Conditions shall not be satisfied or, in Merger Sub's sole discretion, waived (if permitted under this Agreement) until such time as such condition or conditions are satisfied or waived and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date shall extend the Offer is commencedfor any period required by any rule, Acquirer shall file with regulation, interpretation or position of the United States Securities and Exchange Commission (the “"SEC”"), the staff thereof or the Nasdaq Stock Market (the "Nasdaq") a applicable to the Offer, and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII.
(iii) In addition to the extension obligation set forth in Section 1.1(a)(ii)(B), Parent and Merger Sub agree that if on any scheduled Expiration Date of the Offer, the Minimum Tender Condition is not satisfied but all of the other Offer Statement Conditions set forth in Exhibit A are satisfied or, in Merger Sub's sole discretion, waived, then Merger Sub shall, and Parent shall cause Merger Sub to, on Schedule TO with respect each of the first two such scheduled expiration dates, extend the Offer for periods of five (5) Business Days on each such occasion; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times, for five (5) Business Days on each such occasion, and in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII.
(iv) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Date (together defined in Exhibit A) (as it may be extended and re-extended in accordance with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”this Section 1.1(a). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents Price payable in respect of each share of Company Common Stock pursuant to the preceding sentence shall comply be paid net to the seller in all material respects with the provisions of applicable federal securities laws andcash, without interest, on the date filed with terms and subject to the SEC conditions of this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and on subject to the conditions of the Offer upon the expiration of the Offer is referred to in this Agreement as the "Offer Closing," and the date first published, sent or given on which the Offer Closing occurs is referred to in this Agreement as 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 "Offer Closing Date." Merger Sub expressly reserves the statements thereinright to, in light of the circumstances under which they were madeits sole discretion, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by the Company for inclusion in following the Offer Documents. Acquirer shall further take all steps necessary to cause Closing, extend the Offer Documents to be filed for a "subsequent offering period" in accordance with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D Rule 14d-11 under the Exchange Act Act; provided, however, such period (a “Filing Group”including any extensions thereof) as to which Acquirer or any of its members is a signatory shall not exceed twenty (except for 1530 Shares owned by one member of the Acquirer Group20).
Appears in 1 contract
The Offer. (a) Provided Subject to the terms and conditions of this Agreement shall and provided that this Agreement has not have been terminated in accordance with Article VIII and that the Company shall have complied with its obligations under Section 7.01 1.01(b) and subject to the conditions of this Agreement set forth in Section 6.01 1.02(c), as promptly as practicable, practicable (but in no event less later than ten (10) business days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence (the Offer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any obligations of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01Merger Sub to, and of Parent to its rights to extend the Offer under Section 1.01(b)cause Merger Sub to, accept for payment payment, and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means for, any shares of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) are subject to the satisfaction or waiver of the Shares that are outstanding and not held by any member conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended 12:00 midnight, New York City time, on the 20th business day following the commencement of the Offer (determined using Rule 14d-1(g)(3) of the Exchange Act). Merger Sub expressly reserves the right to waive any Offer Condition or modify the extent required by law in connection with such increaseterms of the Offer, in each case except that, without the consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (Bi) Acquirer mayreduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price, (iii) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (iv) add to the Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise permitted under this Agreement, terminate or extend the Offer, (vi) change the form of consideration payable in the Offer, (vii) otherwise amend, modify or supplement any of the terms of the Offer, Offer in any manner adverse to the holders of Company Common Stock in any material respect or (viii) provide for a any “subsequent offering period of up to ten (10) business days period” in accordance with Rule 14d-11 of the Exchange Act following Act. Notwithstanding the Share Acceptanceforegoing, subject to the parties’ respective rights to terminate this Agreement under Article VIII and provided that in no event shall Merger Sub be required to extend the expiration date of the Offer to any date later than the Outside Date, Merger Sub shall, and Parent shall cause Merger Sub to, (A) extend the Offer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company), if at the scheduled expiration date of the Offer any of the Offer Conditions (other than the Minimum Tender Condition) shall not have been satisfied or waived, until such time as such conditions shall have been satisfied or waived, and (B) extend the Offer for the minimum period required by any Law, any rule, regulation or interpretation or position of the SEC or the staff thereof or any rules and regulations of the NASDAQ Global Market (“Nasdaq”) applicable to the Offer. In addition, subject to the parties’ respective rights to terminate this Agreement under Article VIII, if at the otherwise scheduled expiration date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Merger Sub may, and at the request of the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company); provided, that in no event shall Merger Sub (1) be required or permitted to extend the expiration date of the Offer to any date later than the Outside Date or (2) be required or permitted to extend the expiration date of the Offer more than two times pursuant to this sentence. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer and, in any event, no more than three business days after the Acceptance Time. The time at which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Offer is referred to as the “Acceptance Time”. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in accordance with Section 8.01. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.01(a) shall affect any termination rights set forth in Section 8.01.
(cb) On As promptly as practicable on the date of commencement of the Offer is commenced(within the meaning of Rule 14d-2 promulgated under the Exchange Act), Acquirer Parent and Merger Sub shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents ) and shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause disseminate the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case Company Common Stock as and to the extent required by applicable federal securities lawsLaw. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by applicable Law to be set forth in the Offer Documents or as reasonably requested by Parent, so as to enable Parent and Merger Sub to comply with their respective obligations under this Section 1.01(b). Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior to the Expiration Date respect, and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Acquirer Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and copies of Merger Sub shall provide the Company and its counsel 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 good faith consideration to any written responses and telephonic notification of any verbal responses comments reasonably made by Acquirer the Company or its counsel.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Prior Notwithstanding anything to the Share Acceptancecontrary herein, there Parent and Merger Sub shall have been contributed be entitled to Acquirerdeduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as Parent or Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign Tax Law. Amounts so withheld and paid over to the appropriate taxing authority shall have be treated for all purposes of this Agreement as having been properly tendered paid to the Person in respect of which such deduction or withholding was made.
(e) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring or having a record date on or after the date hereof and not withdrawn prior to the Acceptance Time, in each case, effected in compliance with Section 5.01, and the Offer, all Shares beneficially owned Offer Price as so adjusted shall provide to the holders of Company Common Stock the same economic effect as contemplated by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as this Agreement prior to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)such action.
Appears in 1 contract
Samples: Merger Agreement (Sapient Corp)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the terms and conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten five (105) business days (as defined below) after the public announcement of the execution of this Agreementhereof), Acquirer Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT")), an offer (and Purchaser shall commence the “Offer”) Offer to purchase purchase, for cash cash, all of the issued and outstanding Shares at a price of equal to $2.25 1.78 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred "OFFER PRICE"). Subject to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01this Agreement, including, without limitation, SECTION 1.1(c) and the conditions set forth in ANNEX I hereto, Purchaser shall use all commercially reasonable efforts to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it Purchaser is legally permitted to do so under applicable law.
(b) . The Offer shall will initially expire twenty (20) business days after its commencement. The Offer will be made by means of an offer to purchase (the “Offer to Purchase”"OFFER TO PURCHASE") containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”ANNEX I hereto. Subject to SECTION 1.1(c), which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not neither Parent nor Purchaser may decrease the Offer Price or Price, change the form of consideration payable in the Offer, decrease the number of Shares sought in sought, impose additional conditions to the Offer, amend change the conditions to expiration date of the Offer set forth in Section 6.01 or impose conditions to amend any other term or condition of the Offer in addition any manner adverse to those set forth in Section 6.01, the holders of the Shares (other than with respect to insignificant changes or amendments) without the prior written consent of Company; PROVIDED, HOWEVER, that if on the Companyinitial scheduled expiration date of the Offer (as it may be extended) all conditions to the Offer have not been satisfied or waived, authorized by the Special Committee. Acquirer shall (which will not require Offer may be extended from time to time until August 4, 1999 without the consent of the Company). In addition, (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) Price may be increased and (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer may be extended for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended days to the extent required by law in connection with such increase, in each case without the consent of Company. Without limiting the right of Purchaser to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Purchaser shall, and Parent shall cause Purchaser to, extend the expiration date of the Offer (Bi) Acquirer mayin one or more periods of not more than five business days (but in no event later than August 4, under 1999), if (A) any of the terms conditions set forth in ANNEX I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, provide (B) such condition is reasonably capable of being satisfied by Company, (C) Company exercises its reasonable best efforts to cause such condition to be satisfied and (D) Company is in compliance with all of its covenants in this Agreement or (ii) for a subsequent offering period of up to ten (10) five business days in accordance with Rule 14d-11 the event that the Minimum Condition shall not have been satisfied at the first scheduled expiration date of the Exchange Act following the Share AcceptanceOffer.
(cb) On the date As soon as practicable after the Offer is commenced, Acquirer Parent and Purchaser shall file with the United States Securities and Exchange Commission (the “"SEC”") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”"SCHEDULE 14D-1"). The Schedule TO shall contain or shall incorporate by reference 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisementcollectively, together with any amendments and supplements thereto, collectively the “Offer Documents”)"OFFER DOCUMENTS") with respect to the Offer. Parent and Purchaser shall mail the Schedule 14D-1 to the shareholders of Company as soon as practicable after filing with the SEC. The Schedule 14D-1 and the Offer Documents shall will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. Each of Acquirer Parent and Purchaser, on the Company one hand, and Company, on the other hand, shall promptly correct any information provided by it for use in the Schedule 14D-1 and the Offer Documents if and to the extent that it shall have has become false and or misleading in any material respect prior to the Expiration Date and Acquirer further respect. Company shall take all steps necessary to cause provide any information reasonably requested by Purchaser for inclusion in the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsDocuments. The Company and its counsel shall will be given an the opportunity to review the Schedule 14D-1 and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof before they are filed with the SEC. In addition, Acquirer Parent and Purchaser shall provide promptly provide, in writing, to the Company and its counsel in writing counsel, any comments that Acquirer Parent, Purchaser or its their counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-1 and the Offer Documents promptly after receipt Documents.
(c) In the event the Minimum Condition is not satisfied on any scheduled expiration date of the Offer and Company shall not have given to Purchaser a notice to extend the expiration date of the Offer pursuant to subsection (ii) of the last sentence of Section 1.1(a) above, Purchaser may, in its sole discretion, either (i) withdraw the Offer or allow it to expire, (ii) extend the Offer pursuant to SECTION 1.1(a) or (iii) amend the Offer to provide that, in the event (A) the Minimum Condition is not satisfied at the next scheduled expiration date of the Offer (without giving effect to the potential issuance of any Shares issuable upon exercise of the Stock Option Agreement), and (B) the number of Shares tendered pursuant to the Offer and not withdrawn as of such comments next scheduled expiration date is more than 50% of the then outstanding Shares, Purchaser shall waive the Minimum Condition and copies amend the Offer to reduce the number of Shares subject to the Offer to a number of Shares that, when added to the Shares then owned by Purchaser, will equal 49.99% of the Shares then outstanding (the "REVISED MINIMUM NUMBER"), and, if a greater number of Shares is tendered into the Offer and not withdrawn, purchase, on a pro rata basis, the Revised Minimum Number of Shares. Notwithstanding any other provisions of this Agreement, in the event that Purchaser purchases a number of Shares equal to the Revised Minimum Number, then without the prior written responses and telephonic notification consent of any verbal responses Purchaser prior to the termination of this Agreement, Company shall take no action whatsoever to increase the percentage of Shares owned by Acquirer or its counselthe Purchaser in excess of the Revised Minimum Number.
(d) Prior Parent has, and shall provide or cause to be provided to Purchaser on a timely basis, the funds necessary to purchase the Shares that Purchaser becomes obligated to purchase pursuant to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 and this Agreement not having been terminated, as promptly as practicable, practicable but in no event less later than ten (10) business days after the public announcement of the execution of this AgreementJune 14, Acquirer 1996, Merger Sub shall, and Purchaser shall commence (cause Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the “Exchange Act”"EXCHANGE ACT"), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares shares of Common Stock, par value $.01 per share (the "COMMON STOCK") of the Company together with the associated Rights (as hereinafter defined), at a price of $2.25 52.00 (fifty-two dollars) per Share, share of Common Stock net to the seller in cash (such pricethe "OFFER"). Except where the context otherwise requires, or such other price per Share as may be paid in all references herein to the Offer, being referred to herein as shares of Common Stock shall include the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such sellerassociated Rights. The Company shall not tender Shares held by it or obligation of Merger Sub to, and of Purchaser to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of its Subsidiaries Common Stock tendered pursuant to the Offer. Acquirer shall, on Offer shall be subject to the conditions set forth in EXHIBIT A and to the terms and subject conditions of this Agreement. Subject to the prior satisfaction or waiver provisions of the conditions to this Agreement, the Offer set forth shall expire 20 business days after the date of its commencement, unless this Agreement is terminated in Section 6.01accordance with ARTICLE 10, and to its rights to extend in which case the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law(whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without Without the prior written consent of the Company, authorized by Merger Sub shall not (i) waive the Special CommitteeMinimum Condition (as defined in EXHIBIT A), (ii) reduce the number of shares of Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) extend the Offer if all of the Offer conditions are satisfied or waived, (v) change the form of consideration payable in the Offer, or (vi) amend or modify any term or condition of the Offer (including the conditions set forth on EXHIBIT A) in any manner adverse to the holders of Common Stock. Acquirer shall (which will not require Notwithstanding anything herein to the contrary, Merger Sub may, in its sole discretion without the consent of the Company, extend the Offer at any time and from time to time (i) if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to accept for payment and pay for shares of Common Stock shall not have been satisfied or waived; (ii) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or its staff applicable to the Offer; (iii) for any period required by applicable law in connection with an increase in the consideration to be paid pursuant to the Offer; and (iv) if all Offer conditions are satisfied or waived but the number of shares of Common Stock tendered is 85% or more, but less than 90%, of the then outstanding number of shares of Common Stock, for an aggregate period of not more than 5 business days (for all such extensions under this clause (iv)) beyond the latest expiration date that would be permitted under clause (i), (Aii) or (iii) of this sentence. So long as this Agreement is in effect and the Offer conditions have not been satisfied or waived, at the request of the Company, Merger Sub shall, and Purchaser shall cause Merger Sub to, extend the Offer for an aggregate period of not more than 20 business days (for all such extensions) beyond the shortest time periods which it reasonably believes are necessaryoriginally scheduled expiration date of the Offer. Subject to the terms and conditions of the Offer and this Agreement (but subject to the right of termination in accordance with ARTICLE 10), Merger Sub shall, and Purchaser shall cause Merger Sub to, accept for payment, in one or more such periodsaccordance with the terms of the Offer, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number all shares of Shares Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of as soon as practicable after the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms expiration of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 and as promptly soon as practicable, but in no any event less than ten (10) within five business days after the first public announcement of the execution of this Agreement, Acquirer Sub shall, and Investor shall commence (cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, (as amended (the “Exchange Act”hereinafter defined), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender obligation of Sub to, and of Investor to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares held by it or any of its Subsidiaries tendered pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer subject to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Exhibit A and to the terms and conditions of this Agreement. The Offer shall initially expire 20 business days after the date of its commencement (subject to the other provisions of this Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”1.1); provided, however, that unless this Agreement is terminated in accordance with Article X, in which term shall also indicate any later date to which case the Offer is (whether or not previously extended in accordance with this Agreementthe terms hereof) shall expire on such date of twenty termination, at the request of the Company, Investor and Sub shall extend the expiration date of the Offer from time to time to the earlier of (20i) business days the date on which Sub purchases or becomes obligated to purchase that number of Shares that would satisfy the Minimum Condition (as defined in Rule 14d-1 under Exhibit A) and (ii) the Exchange Act) from date 60 business days after the date of commencement of the Offerits commencement. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without Without the prior written consent of the Company, authorized by Sub shall not (i) waive the Special Committee. Acquirer shall (which will not require the consent of the Company)Minimum Condition, (Aii) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, reduce the number of Shares validly tendered and not withdrawn subject to the Offer, (iii) reduce the price per share of either class of the Shares to be paid pursuant to the Offer is less than eighty-five percent Offer, (85%iv) of except as provided in the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company)following sentence, extend the Offer for up to ten (10) business daysOffer, notwithstanding that if all of the conditions to of the Offer were are satisfied as or waived, or (v) change the form of consideration payable in the date such extensionOffer. In additionNotwithstanding the foregoing, (A) the Offer Price may be increasedSub may, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, extend the Offer at any time, and from time to time: (Bi) Acquirer may, under if at the terms then scheduled expiration date of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 Offer any of the Exchange Act following conditions to Sub's obligation to accept for payment and pay for the Share Acceptance.
Shares shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; (cii) On the date the Offer is commencedfor any period required by any rule, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoregulation, the “Schedule TO”). The Schedule TO shall contain interpretation or shall incorporate by reference the Offer to Purchase and a form position of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case (as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicablehereinafter defined) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect applicable to the Offer Documents promptly after receipt Offer; (iii) until 10 business days following the expiration of the 10 business day period referred to in the condition in clause (f) of Exhibit A and if such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
condition (df) Prior to the Share Acceptance, there shall not have been contributed to Acquirersatisfied, or for as long as Investor and Sub shall have been properly tendered and not withdrawn determine until, in the Offertheir sole discretion, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member conditions of the Acquirer Group).Offer are satisfied; and
Appears in 1 contract
Samples: Agreement and Plan of Merger (Prometheus Senior Quarters LLC)
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.1 and subject to so long as none of the conditions of this Agreement events or circumstances set forth in Section 6.01 as promptly as practicableAnnex A hereto shall have occurred and be continuing, but in no event less not later than ten (10) the fifth business days day after the date of public announcement of the execution of this Agreement, Acquirer Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”")), an offer (and Parent shall cause Purchaser to commence, the “Offer”) Offer at the Share Price. The obligation of Purchaser to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in consummate the Offer, being referred to herein as the “Offer Price”), subject accept for payment and to reduction only pay for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries tendered pursuant to the Offer. Acquirer shall, on Offer shall be subject only to those conditions set forth in Annex A and the terms and subject to the prior satisfaction or waiver of the other conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined . Purchaser expressly reserves the right, in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offerits sole discretion, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01waive any such condition; provided that, without the prior written consent of the Company, authorized by Parent or Purchaser shall not waive the Special CommitteeMinimum Condition (as defined in Annex A). Acquirer The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (which will not require determined using Rule 14d-2(a) under the Exchange Act).
(b) Purchaser expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer; provided that without the prior written consent of the Company, no modification or change may be made which (i) decreases the consideration payable in the Offer, (ii) changes the form of consideration payable in the Offer (other than by adding consideration), (iii) changes the Minimum Condition, (iv) decreases the maximum number of Shares sought pursuant to the Offer, (v) changes the conditions to the Offer in a manner adverse to the stockholders of the Company, (vi) imposes additional conditions to the Offer (other than in respect of any consideration which is payable in addition to the Share Price), (vii) changes any other terms of the Offer in a manner adverse to the stockholders of the Company, or (viii) except as provided in the next sentence, extends the Offer. Notwithstanding the foregoing, Purchaser may (but shall not be required under this Agreement or otherwise to), without the prior written consent of the Company, (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in on one or more occasions for such periodsperiod as may be determined by Purchaser in its sole discretion (each such extension period not to exceed 10 business days at a time), if anyat the then scheduled expiration date of the Offer any of the conditions to Purchaser's obligations to accept for payment and pay for Shares shall not be satisfied or waived, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) ifextend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, and(C) extend the Offer on one or more occasions for an aggregate period of not more than five business days if the Expiration DateMinimum Condition has been satisfied but less than 90% of then outstanding Shares have been validly tendered and not properly withdrawn. Without limiting the right of Purchaser to extend the Offer pursuant to the immediately preceding sentence, in the number event the Minimum Condition shall not have been satisfied or that the condition set forth in paragraph (d) of Annex A with respect to the HSR Act (as defined herein) or with respect to an action or proceeding by a Governmental Entity that shall not have been satisfied or waived at the scheduled or any extended expiration date of the Offer, at the request of the Company, Purchaser shall, and Parent shall cause Purchaser to, extend the expiration date of the Offer, in five business day increments, until the earliest to occur of (x) the satisfaction or waiver of the Minimum Condition or such other condition, (y) the termination of this Agreement in accordance with its terms and (z) January 31, 2000. It is agreed that the conditions to the Offer set forth on Annex A are for the benefit of Purchaser and may be asserted by Purchaser or, except with respect to the Minimum Condition as set forth in Section 1.1(a), may be waived by Purchaser, in whole or in part at any time and from time to time, in its sole discretion. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Purchaser shall accept for payment and pay for, and Parent shall cause Purchaser to accept for payment and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) that Purchaser becomes obligated to purchase pursuant to the Offer. Parent shall provide, or cause to be provided, the funds necessary to purchase any and all of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Purchaser becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection accordance with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptancethis Agreement.
(c) On the date of commencement of the Offer is commencedOffer, Acquirer Parent and Purchaser shall file with the United States Securities and Exchange Commission (SEC with respect to the “SEC”) Offer a Tender Offer Statement on Schedule TO with respect to the Offer 14D-1 (together with all amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”). The Schedule TO shall contain or shall incorporate by reference 14D-1") with respect to the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall which will comply in all material respects with the provisions of applicable federal securities laws andlaws, on and will contain the date filed with the SEC and on the date first published, sent or given offer to purchase relating to the Company’s stockholdersOffer (the "Offer to Purchase") and forms of related letter of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "Offer Documents"). Parent 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 deliver copies of the circumstances under which they were made, not misleading, except that no representation shall be made by Acquirer with respect to information supplied by proposed forms of the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause Schedule 14D-1 and the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect within a reasonable time prior to the Expiration Date and Acquirer further shall take all steps necessary to cause commencement of the Offer Documents as so corrected to be filed with for review and comment by the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity counsel. Parent agrees to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer Purchaser, Parent or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments thereof. The Company, Parent and copies of Purchaser shall promptly correct any written responses and telephonic notification of any verbal responses information provided by Acquirer it for use in the Schedule 14D-1 or its counsel.
(d) Prior to the Share Acceptance, there Offer Documents that shall have been contributed to Acquirer, be or shall have been properly tendered become false or misleading in any material respect and not withdrawn in Parent and Purchaser further agree to take all steps necessary to cause the Offer, all Shares beneficially owned by any member of Acquirer Schedule 14D-1 or any member of a group that has Offer Documents as so corrected to be filed a Schedule 13D under with the Exchange Act (a “Filing Group”) as SEC and disseminated to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member the stockholders of the Acquirer Group)Company, as and to the extent required by applicable federal securities laws.
Appears in 1 contract
The Offer. (a) Provided Subject to the conditions of this Agreement Agreement, as promptly as practicable but in no event later than five Business Days after the date of this Agreement, Purchaser shall, and Parent shall cause Purchaser to, commence the Offer 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 or accept for payment, or pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in Annex B (any of which may be waived by Purchaser in its sole discretion, provided that, without the consent of the Company, Purchaser may not waive the Minimum Tender Condition or the condition set forth in paragraph (b)(viii) of Annex B) and to the other provisions of this Agreement. The initial expiration date of the Offer shall be the 20th Business Day following the commencement of the Offer (determined using Rule 14d-1(c)(6) under the Exchange Act). Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) modify or add to the conditions set forth in Annex B in any manner materially 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 (vi) otherwise amend the Offer in any manner materially adverse to the holders of shares of Company Common Stock. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Purchaser's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (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 less than 90% of the Fully Diluted Shares have been terminated in accordance with Section 7.01 validly tendered and not properly withdrawn pursuant to the Offer, (iii) extend the Offer for any period required by any Regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (iv) extend the Offer for any reason for a period of not more than 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence. On the terms and subject to the conditions of this Agreement set forth in Section 6.01 as promptly as practicable, but in no event less than ten (10) business days after the public announcement of the execution of Offer and this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01Parent shall cause Purchaser to, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means all shares of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Purchaser becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as of soon as practicable after the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms expiration of the Offer.
(b) Notwithstanding anything to the contrary contained in this Agreement, provide for a subsequent offering period Parent and Purchaser shall not be required to commence the Offer in any jurisdiction other than the United States of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share AcceptanceAmerica.
(c) On the date of the Offer is commencedcommencement of the Offer, Acquirer Purchaser shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments "Schedule 14D-1") which will contain an offer to purchase and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal (the Schedule 14D-1 and related summary advertisementthe documents included therein pursuant to which the Offer will be made, together with any supplements or amendments and supplements thereto, collectively collectively, the “"Offer Documents”"). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws andParent, on the date filed with the SEC and on the date first publishedPurchaser, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall 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 and or misleading in any material respect prior and Parent and Purchaser further agree to the Expiration Date and Acquirer further shall 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 Sharesshares of Company Common Stock, in each case case, as and to the extent required by applicable federal securities lawsLaws. The Parent and Purchaser agree to give the Company and its counsel shall be given an a reasonable opportunity to review and comment upon on the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof of the Offer Documents with the SEC. In addition, Acquirer shall Purchaser agrees to provide to the Company and its counsel in writing with any comments that Acquirer or Purchaser and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselthereof.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Merger Agreement (Tracor Inc /De)
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten (10) business days Business Days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer under the applicable rules and regulations of the Securities and Exchange Commission (within the meaning “SEC”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit B (the “Offer Conditions”). The initial expiration date of the Offer (the “Initial Expiration Date”) shall be midnight (New York City time) on the twentieth (20th) Business Day following commencement of the Offer (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right to waive, an offer in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (A) reduce the number of shares of the Company Common Stock subject to the Offer, (B) reduce the Offer Price except in accordance with Section 1.1(e), (C) waive or amend the Minimum Tender Condition, add to the Offer Conditions or modify any Offer Condition in any manner adverse to the holders of the Company Common Stock, (D) except as otherwise provided in this Section 1.1(a), extend the Offer, (E) change the form of consideration payable in the Offer or (F) otherwise amend the Offer in any manner adverse to the holders of the Company Common Stock. Notwithstanding the foregoing, Merger Sub shall extend the Offer for the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, but not beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer any Offer Condition is not satisfied (or to the extent permitted hereby, waived) and until such time as such conditions are satisfied, Merger Sub may, in its sole discretion, without the consent of the Company, or if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one (1) or more occasions, in consecutive increments between two (2) and ten (10) Business Days each, with the length of such period to be determined by Merger Sub or, in the event such extension is requested by the Company, such period between two (2) and (10) Business Days as the Company requests (or in any event such other period as the parties hereto may agree) (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such priceInitial Expiration Date, or such other price per Share as may later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”); provided, however, that Merger Sub shall not be paid required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the earliest to occur of (i) the valid termination of this Agreement in accordance with Article 9 and (ii) the Outside Date. Merger Sub may, in its sole discretion, make available one (1) or more “subsequent offering periods”, in accordance with Rule 14d-11 under the Exchange Act, of not less than three (3) Business Days and not more than twenty (20) Business Days in the Offer, being referred to herein as the “Offer Price”), subject to reduction only aggregate for any applicable federal back-up withholding or stock transfer taxes payable by such sellerall subsequent offering periods. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on On the terms and subject to the prior satisfaction or waiver conditions of the conditions to the Offer set forth in Section 6.01and this Agreement, Merger Sub shall, and to its rights to extend the Offer under Section 1.01(b)Parent shall cause Merger Sub to, accept for payment and pay for Shares tendered as soon as it is legally permitted (subject to do so under applicable law.
(bany withholding of Tax pursuant to Section 4.2(f)) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement all shares of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Merger Sub becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as promptly after the expiration of the Offer.
(b) On the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up Parent and Merger Sub shall file with the SEC, pursuant to ten (10) business days and in accordance with Rule 14d-11 of 14d-3 and Regulation M-A under the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commencedAct, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementshall be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC Parent and on the date first published, sent or given Merger Sub agree 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case shares of the Company Common Stock as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent and Merger Sub for inclusion therein. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior and to the Expiration Date correct any material omissions therein; and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to holders of Sharesthe Company’s shareholders, in each case as and to the extent required by applicable federal Federal securities laws. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing copies of any written comments, and shall inform the Company and its counsel of any oral comments or discussions, that Acquirer Parent, Merger Sub or its their counsel may receive from or engage with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies or the commencement or occurrence of any written responses such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and telephonic notification of Merger Sub shall provide the Company and its counsel 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 and good faith consideration to any verbal responses comments made by Acquirer the Company or its counsel.
(dc) Prior Subject to the Share Acceptanceterms and the conditions of the Offer and this Agreement, there and the satisfaction (or, if permitted to be waived by Parent and Merger, the waiver by Parent and Merger Sub) of the Offer Conditions, (i) as soon as practicable after the applicable Expiration Date, Merger Sub shall have been contributed accept for payment and promptly (and in any event within three (3) business days (as determined using Rule 14d-1(g)(3) under the Exchange Act) after such acceptance) pay for, and Parent shall cause Merger Sub to Acquireraccept for payment and pay for, or shall have been properly all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer (the time of such acceptance for payment, the “Acceptance Time,” and the time of such payment, the “Offer Closing”), or (ii) in the case of any shares of Company Common Stock tendered during any subsequent offering period, Merger Sub shall immediately accept for payment and promptly (and in any event within three (3) business days (as determined using Rule 14d-1(g)(3) under the Exchange Act)) pay for, and Parent shall cause Merger Sub to accept for payment and pay for, all such shares of Company Common Stock validly tendered during such period.
(i) If at any then-scheduled expiration of the Offer, all Shares beneficially owned by any member Offer Condition shall not have been satisfied or waived and no further extension or re-extensions of Acquirer or any member the Offer are required pursuant to Section 1.1(a), Merger Sub may irrevocably and unconditionally terminate the Offer upon delivery of a group that has filed a Schedule 13D under written notice to the Exchange Act Company, and (a “Filing Group”ii) as if this Agreement is terminated pursuant to which Acquirer Article 9, then Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within two (2) Business Days of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Article 9, (i) Merger Sub shall promptly return, and shall cause any depository acting on behalf of its members is a signatory (except for 1530 Shares owned by one member Merger Sub to return, all tendered shares of the Acquirer GroupCompany Common Stock to the registered holders thereof and (ii) any “standstill” or similar covenant in the Confidentiality Agreement previously waived by the Company shall, without any further action by the Company, be automatically reinstated and be deemed to be in full force and effect.
(e) If, during the period between the date of this Agreement and the Effective Time, the outstanding shares of Company Common Stock shall be changed into a different number of shares or a different class (including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or stock dividend thereon with a record date during such period but excluding any change that results from any exercise of Company Stock Options that are outstanding as of the date hereof), the Per Share Merger Consideration, Offer Price and any other amounts payable pursuant to this Agreement shall be appropriately adjusted.
(f) For purposes of this Agreement and the Offer (including the exercise of the Top-Up Option), unless otherwise mutually agreed to by the Company and Merger Sub, 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 underlying such notices of guaranteed delivery are delivered to or on behalf of Merger Sub.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 7.01 8.01 and provided further that the Company is prepared (in accordance with Section 1.02(a)), to file with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9 on the same date as Merger Sub commences the Offer, subject to the terms and conditions of this Agreement set forth in Section 6.01 Agreement, as promptly as practicable, practicable (but in no event less later than ten thirteen (1013) business days after the public announcement of the execution date of this Agreement), Acquirer Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A hereto (the “Offer Conditions”). The initial expiration date of the Offer shall be at the time that is one minute following 11:59 p.m., Eastern time, on the date that is 20 business days (determined using Rule 14d-2 under 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), an offer () after the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) first commenced (within the meaning of twenty (20) business days (as defined in Rule 14d-1 14d-2 promulgated under the Exchange Act) from ). Merger Sub expressly reserves the date right to waive, in its sole discretion, in whole or in part, any Offer Condition or modify the terms of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01any manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, authorized by Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the Special Committee. Acquirer shall number of shares of Company Common Stock subject to the Offer, (which will not require ii) reduce the consent Offer Price, (iii) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in this Section 1.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vi) change the form or terms of consideration payable in the Offer, (vii) otherwise amend, modify or supplement any of the Company)terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more consecutive increments of not more than ten business days each (or for such periodslonger period as may be agreed to by Parent and the Company), if any, to satisfy at the scheduled expiration date of the Offer any such condition that has of the Offer Conditions (other than the Minimum Tender Condition) shall not by then have been satisfied (or waived, until such time as such conditions shall have been satisfied or waived by Acquirer in its discretion to (irrespective of whether the extent permitted by Section 6.03Minimum Tender Condition has been satisfied) and (B) ifextend the Offer for the minimum period required by any rule, on regulation or interpretation or position of the Expiration Date, SEC or the number of Shares validly tendered and not withdrawn pursuant staff thereof or The Nasdaq Global Market (“Nasdaq”) applicable to the Offer; provided that Merger Sub shall not be required to extend the Offer is less than eighty-five percent (85%) beyond the Outside Date. In addition, if at the otherwise scheduled expiration date of the Shares that are outstanding Offer, each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not held have been satisfied, Merger Sub may elect to (and if so requested by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company, Merger Sub shall, and Parent shall cause Merger Sub to), extend the Offer for up one or more consecutive increments of such duration as requested by the Company (or if not so requested by the Company, as determined by Parent), but not more than ten business days each (or for such longer period as may be agreed to ten (10) business daysby Parent and the Company); provided that the Company shall not request Merger Sub to, notwithstanding and Parent shall not be required to cause Merger Sub to, extend the Offer pursuant to this sentence on more than five occasions; provided, further, that all Merger Sub shall not, and shall not be required to extend the Offer beyond the Outside Date. On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer were satisfied that Merger Sub becomes obligated to purchase pursuant to the Offer as promptly as practicable after the expiration of the date such extension. In addition, Offer (A) which shall be the next business day after the expiration of the Offer Price absent extenuating circumstances) and, in any event, no more than three business days after the expiration of the Offer. The time at which Merger Sub first irrevocably accepts for purchase the shares of Company Common Stock tendered in the Offer is referred to as the “Offer Closing Time.” The Offer may not be terminated or withdrawn prior to its expiration date (as such expiration date may be increasedextended and re-extended in accordance with this Section 1.01(a)), unless this Agreement is validly terminated in which event accordance with Section 8.01. If this Agreement is validly terminated in accordance with Section 8.01, Merger Sub shall promptly terminate the Offer and return, and shall be extended cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the extent required by law registered holders thereof. Nothing contained in connection with such increase, this Section 1.01(a) shall affect any termination rights set forth in each case without Section 8.01.
(b) As promptly as reasonably practicable on the consent date of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up to ten Parent and Merger Sub shall (10i) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer include an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A hereto (the “such Schedule TO, as amended from time to time, and the documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC ) and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause (ii) disseminate the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case Company Common Stock as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall 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 Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior respect, and to the Expiration Date correct any material omissions therefrom, and Acquirer further each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so corrected amended or supplemented, to be filed with the SEC and to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal securities lawsLaw. The Company Parent and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Merger Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Acquirer Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except from and after an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC or its staff with respect to the Offer Documents, Parent and copies of Merger Sub shall (x) provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (it being understood that the Company and its counsel shall provide any written responses comments thereon as soon as reasonably practicable) and telephonic notification of (y) give reasonable and good faith consideration to any verbal responses comments made by Acquirer the Company or its counsel. Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Prior to If, between the Share Acceptancedate of this Agreement and the Offer Closing Time, there the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group)be appropriately adjusted.
Appears in 1 contract
Samples: Merger Agreement (Dermira, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 7.01 9.01 and subject to none of the conditions of this Agreement events set forth in Section 6.01 Annex A hereto shall have occurred and be continuing, as promptly as practicable, but in no event less later than ten (10) eight business days days, after the public announcement of the execution of this Agreementdate hereof, Acquirer Parent shall cause Sub to, and Sub shall, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (such Act and the “rules and regulations promulgated thereunder being referred to herein as the "Exchange Act”"), an ) a tender offer (the “"Offer”") to purchase for cash all of the issued and outstanding Shares at a price shares of Class A Common Stock for $2.25 5.20 per Shareshare (such amount, or any greater amount per share paid pursuant to the Offer, the "Per Share Amount") net to the seller in cash cash. The obligation of Sub to consummate the Offer and to accept for payment and to pay for any shares of Class A Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto. Sub expressly reserves the right 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. Notwithstanding the foregoing, no change may be made which (such pricei) decreases the Per Share Amount, or such other price per Share as may (ii) changes the form of consideration to be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(biii) 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 Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease reduces the number of Shares shares of Class A Common Stock sought to be purchased in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose (iv) imposes conditions to the Offer in addition to those set forth in Section 6.01Annex A hereto, without (v) extends the prior written consent expiration date of the Company, authorized by the Special Committee. Acquirer shall Offer (which will not require shall initially be the consent minimum period that the Offer must remain open under the applicable rules and regulations of the CompanySecurities and Exchange Commission (the "SEC")) or (vi) otherwise alters or amends any term of the Offer in any manner adverse to the holders of shares of Class A Common Stock; provided, however, that (subject to the right of the parties to terminate this Agreement in accordance with Section 9.01) the Offer may be extended (1) for any period to the extent required by law or by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, (A2) on one or more occasions (each such extension period not to exceed 10 business days at one time) if at the then scheduled expiration date of the Offer any of the conditions to Sub's obligations to accept for payment and pay for Class A Common Stock set forth in Annex A hereto shall not be satisfied or waived, (3) on one or more occasions for an aggregate period of not more than 10 business days if the Minimum Condition (as defined in Annex A hereto) has been satisfied but less than 90% of the then outstanding shares of Class A Common Stock have been validly tendered and not properly withdrawn, and (4) to provide for a subsequent offering period in accordance with Rule 14d-11 under the Exchange Act. Parent and Sub agree that, in the event Sub is unable to consummate the Offer on or prior to the expiration date of the Offer due to the failure of any conditions set forth in Annex A hereto to be satisfied, but subject to the right of the parties to terminate this Agreement in accordance with Section 9.01 and to the right of Parent to exercise the Merger Trigger, Parent shall cause Sub to, and Sub shall, extend the Offer for until the shortest earlier of (i) July 31, 2000 or (ii) such time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any as each such condition that has not by then been satisfied (or waived by Acquirer in its discretion waived. Assuming the prior satisfaction or waiver of the conditions of the Offer and subject to the extent permitted by Section 6.03) foregoing right to extend the Offer, Sub shall pay for any and (B) if, on the Expiration Date, the number all shares of Shares Class A Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”). The Schedule TO shall contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly practicable after receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counseltermination thereof.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Merger Agreement (Carson Inc)
The Offer. (a) Provided Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with Section 7.01 its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer 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 pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions of this Agreement set forth in Section 6.01 as promptly as practicable, but in no event less than ten (10) business days after the public announcement Exhibit A. The initial expiration date of the execution Offer shall be the 20th business day following the commencement of this Agreement, Acquirer shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended Offer (the “Exchange Act”), initial "Expiration Date," and any expiration time and date established pursuant to an offer (the “Offer”) to purchase for cash all authorized extension of the issued Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and outstanding Shares at a price of $2.25 per Share, net Merger Sub expressly reserve the right to waive any condition to the seller in cash (such price, Offer or such other price per Share as may be paid in modify the terms of the Offer, being referred to herein as except that, without the “Offer Price”)written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit Aor 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 (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Acquirer shallNotwithstanding the foregoing, on Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the prior satisfaction or waiver of the conditions to the Offer that are set forth in Section 6.01this Agreement, and to its rights to extend promptly after the Offer under Section 1.01(b)Expiration Date, either Parent or Merger Sub shall accept for payment and pay for Shares tendered purchase, as soon promptly as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer to purchase (practicable after the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, on which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days Parent or Merger Sub (as defined in Rule 14d-1 under the Exchange Actcase may be) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions first accepts shares for payment pursuant to the Offer set forth in Section 6.01 or impose conditions to (the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company"Acceptance Date"), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number all shares of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(85%b) On the date of commencement of the Shares that are outstanding Offer, Parent and not held by any member of a Filing Group (determined on a fully diluted basisMerger Sub shall file with the SEC, after giving effect and cause to be disseminated to the exercise or conversion of all optionsCompany's stockholders, rights as and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions to the Offer were satisfied as of the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increaseapplicable federal securities laws, in each case without the consent of the Company, and (B) Acquirer may, under the terms of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “"Offer Documents”"). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have originally been or shall become false and or misleading in any material respect prior to the Expiration Date (whether by virtue of a material misstatement, material omission or otherwise), and Acquirer further 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 corrected amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. The Company and its counsel shall be given an reasonable opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the their filing thereof with the SECSEC or dissemination to the stockholders of the Company. In addition, Acquirer Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments that Acquirer (and orally, any oral comments), Parent, Merger Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies of shall consult with the Company and its counsel prior to responding to any written responses and telephonic notification of any verbal responses by Acquirer or its counselsuch comments.
(dc) Prior Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions of this Agreement Agreement, as promptly as practicable but in no event later than five business days after the date of this Agreement, Sub shall, and Conopco shall cause Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of Sub to, and of Conopco to cause Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Section 6.01 7.01. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (determined using Rule 14d-2 of the SEC). Sub expressly reserves the right to modify the terms of the Offer or waive any condition to the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) reduce or waive the Minimum Tender Condition (as promptly as practicabledefined in Section 7.01), but (iv) modify, in no event less any manner adverse to the holders of Company Common Stock, or add to, the conditions set forth in Section 7.01, (v) extend the Offer or (vi) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) extend the Offer in increments of not more than ten (10) five business days after each, if at the public announcement scheduled expiration date of the execution Offer any of this Agreementthe conditions to Sub's obligation to purchase shares of Company Common Stock are not satisfied, Acquirer shall commence until such time as such conditions are satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (iii) make available a subsequent offering period (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all 14d-11 of the issued and outstanding Shares at a price SEC). Without limiting the right of $2.25 per Share, net Sub to the seller in cash (such price, or such other price per Share as may be paid in extend the Offer, being referred in the event that any condition set forth in paragraph (a) of Section 7.01 is not satisfied or waived at the scheduled expiration date of the Offer, at the request of the Company Sub shall, and Conopco shall cause Sub to, extend the expiration date of the Offer in increments of five business days each until the earliest to herein as occur of (w) the “Offer Price”)satisfaction or waiver of such condition, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by (x) Conopco reasonably determines that such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant condition to the OfferOffer is not capable of being satisfied on or prior to September 30, 2000, (y) the termination of this Agreement in accordance with its terms and (z) September 30, 2000. Acquirer shallIn addition, on the terms and subject to the prior satisfaction or waiver conditions of the conditions to the Offer set forth in Section 6.01and this Agreement, and to its rights to extend the Offer under Section 1.01(b), accept for payment and Sub shall pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means all shares of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without the prior written consent of the Company, authorized by the Special Committee. Acquirer shall (which will not require the consent of the Company), (A) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, the number of Shares Company Common Stock validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect Sub becomes obligated to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company), extend the Offer for up to ten (10) business days, notwithstanding that all the conditions purchase pursuant to the Offer were satisfied as soon as practicable after the expiration of the Offer.
(b) On the date such extension. In addition, (A) the Offer Price may be increased, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, and (B) Acquirer may, under the terms commencement of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer Conopco and Sub shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoOffer, the “Schedule TO”). The Schedule TO which shall contain or shall incorporate by reference the Offer an offer to Purchase purchase and a form of related letter of transmittal and summary advertisement (such Schedule TO and the “Schedule TO, documents included therein pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made, together with any supplements or amendments and supplements thereto, collectively the “Offer Documents”"OFFER DOCUMENTS"). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Acquirer Conopco, Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false and or misleading in any material respect prior to the Expiration Date respect, and Acquirer further each of Conopco and Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so corrected amended or supplemented to be filed with the SEC and to be disseminated to holders of Sharesthe Company's shareholders, in each case as and to the extent required by applicable federal Federal securities laws. The Company Conopco and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Sub shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing with any comments that Acquirer Conopco, Sub or its their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counselcomments.
(d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).
Appears in 1 contract
Samples: Merger Agreement (Conopco Inc)
The Offer. (a) Provided Unless this Agreement shall not have been terminated in accordance with Section 7.01 and subject to the conditions of this Agreement set forth in Section 6.01 10.01, as promptly as practicablepracticable after the date of this Agreement, but in no event less later than ten five (105) business days after (unless otherwise agreed to by Super ROI and the public announcement of Company and approved by the execution Special Committee) following the date of this AgreementAgreement (subject to the Company having timely provided any information required to be provided by it pursuant to Section 2.01(f)), Acquirer Parent shall (and Super ROI shall cause Parent to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender Shares held by it or any of its Subsidiaries pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver The obligation of the conditions to the Offer set forth in Section 6.01Parent to, and of Super ROI to its rights to extend the Offer under Section 1.01(b)cause Parent to, accept for payment Class A Ordinary Shares and pay for Shares ADSs tendered as soon as it is legally permitted pursuant to do so under applicable lawthe Offer will be subject to the satisfaction of each of the conditions set forth in Annex A (the “Offer Conditions”). Super ROI and Parent expressly reserve the right to (i) waive, in whole or in part, any Offer Condition at any time and from time to time, in their sole discretion, (ii) increase the Offer Price payable in the Offer and (iii) make any other changes in the terms and conditions of the Offer, subject, in each case, to the provisions of Section 2.01(b).
(b) The Offer Parent shall be made by means of an offer to purchase (not, and Super ROI shall not permit Parent to, without the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”, which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement prior written consent of the Offer. Acquirer Company (which consent shall not have been approved by the Special Committee), (1) decrease the Offer Price or decrease change the number form of Shares sought consideration payable in the Offer, amend (2) reduce the conditions number of Class A Ordinary Shares and ADSs to be purchased in the Offer set forth in Section 6.01 or Offer, (3) impose conditions to the Offer in addition to those set forth in Section 6.01Annex A, without (4) waive or change the prior written consent Minimum Condition or the Financing Condition, or (5) amend any other term of the Offer in a manner adverse to the Company, authorized ’s Unaffiliated Security Holders.
(c) Unless extended as provided in this Agreement or as may otherwise be agreed to by Super ROI and the Company (which agreement shall have been approved by the Special Committee), the Offer shall expire one minute after 11:59 p.m., New York City time, on the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the commencement of the Offer. Acquirer Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 10.01:
(i) in no event shall Parent be permitted without the Company’s prior written consent (which will not require consent shall have been approved by the consent of Special Committee) or required to extend the Company), Offer beyond the Outside Date; and
(ii) subject to the foregoing clause (i):
(A) extend if, immediately prior to the then-effective expiration time of the Offer, any of the Offer for Conditions (other than any Offer Condition that, by its nature, is to be satisfied only immediately prior to the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that Acceptance Time) has not by then been satisfied (or waived by Acquirer in its discretion or, to the extent permitted by Section 6.03) this Agreement and applicable Law, waived by Parent (B) if, on the Expiration Date, the number of Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty-five percent (85%) extent waivable by Parent), then, Parent may or, at the written request of the Shares that are outstanding Company (which request shall have been approved by the Special Committee), Parent shall (and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the CompanySuper ROI shall cause Parent to), extend the Offer for up one or more periods, in consecutive increments of not more than 10 business days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) each (or such other duration as may be agreed to ten by Super ROI and the Company (10which agreement shall have been approved by the Special Committee)), to permit such Offer Condition to be satisfied; provided that in no event shall Parent be permitted without the Company’s prior written consent (which consent shall have been approved by the Special Committee) business days, notwithstanding that all the conditions or required to extend the Offer were satisfied as of the date such extension. In addition, pursuant to this clause (A) beyond one minute after 11:59 p.m., New York City time, on the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the date that all of the Offer Price may Conditions (other than any Offer Condition that, by its nature, is to be increased, in which event satisfied only immediately prior to the Acceptance Time) have been satisfied;
(B) Parent shall (and Super ROI shall cause Parent to) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or by any rule, regulation or position of NYSE or by any applicable U.S. federal securities law. The time when the Offer expires (taking into account any permitted or required extensions in accordance with this Section 2.01(c)) is referenced herein as the “Expiration Time”.
(d) Parent shall be extended not (and Super ROI shall cause Parent not to) terminate or withdraw the Offer prior to the extent required by law Expiration Time unless this Agreement has been terminated in connection accordance with such increaseSection 10.01. Nothing in this Section 2.01 shall impair, in each case without limit or otherwise restrict the consent respective rights of the Company, Super ROI and Parent to terminate this Agreement in accordance with Section 10.01. In the event that this Agreement is validly terminated in accordance with Section 10.01, Parent shall (and Super ROI shall cause Parent to) promptly (and in any event within one business day), irrevocably and unconditionally terminate the Offer. In the event that the Offer is validly terminated, Parent shall not acquire any Class A Ordinary Shares or ADSs pursuant to the Offer and shall cause any tender agent for the Offer acting on its behalf to return, in accordance with applicable Law, any tendered Class A Ordinary Shares or ADSs to the registered holders thereof.
(e) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or, to the extent permitted by this Agreement and applicable Law, waiver by Parent of each of the Offer Conditions (to the extent waivable by Parent), Parent shall (and Super ROI shall cause Parent to) (i) accept for payment, promptly after the Expiration Time, all Class A Ordinary Shares and ADSs validly tendered (and not validly withdrawn) pursuant to the Offer (the time at which Class A Ordinary Shares and ADSs are first accepted for payment under the Offer, the “Acceptance Time”) and (Bii) Acquirer may, under promptly pay (or cause the terms Paying Agent to pay) for such Class A Ordinary Shares and ADSs.
(f) As promptly as reasonably practicable on the date of commencement of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act following the Share Acceptance.
(c) On the date the Offer is commenced, Acquirer Super ROI and Parent shall file with the United States Securities and Exchange Commission (the “SEC”) SEC a combined Tender Offer Statement on and Rule 13E-3 Transaction Statement under cover of Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the “Schedule TO”)) with respect to the Offer. The Schedule TO shall will contain or shall incorporate by reference the Offer related offer to Purchase and a purchase, form of letter of transmittal transmittal, summary advertisement, if any, and summary advertisement (other documents required pursuant to Section 14(d) of the “Schedule TOExchange Act or Regulation 14D, as applicable, pursuant to which the Offer to Purchase and related letter of transmittal and related summary advertisementwill be made (collectively, together with any amendments and or supplements thereto, collectively the “Offer Documents”). The Super ROI and Parent shall cause the Offer Documents shall comply in all material respects with to be disseminated to holders of Class A Ordinary Shares and ADSs to the provisions of extent required by applicable U.S. federal securities laws and, on or the date filed with the SEC rules and on the date first published, sent or given regulations of NYSE. The Company shall promptly furnish 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 shall be made by Acquirer with respect to Super ROI and Parent all information supplied by concerning the Company that may be required by applicable securities laws or reasonably requested by Super ROI or Parent for inclusion in the Offer Documents. Acquirer Super ROI, Parent 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 Super ROI and Parent further agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of SharesClass A Ordinary Shares and ADSs, in each case as and to the extent required by applicable federal securities laws. Each laws or the rules and regulations of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and NYSE to give effect to the extent that it shall have become false Offer. Super ROI and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and Parent shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its legal counsel in writing with (i) any comments or other communications, whether written or oral, that Acquirer the Company or its legal counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or any Offer Documents Document promptly after receipt of such those comments or other communications and (ii) a reasonable opportunity to participate in Super ROI’s and Parent’s response to those comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
to provide comments on that response (d) Prior to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer reasonable and good faith consideration shall be given), including by using reasonable best efforts to give the Company and its legal counsel the opportunity to participate with Super ROI, Parent and their legal counsel in any substantive discussions or any of its members is a signatory (except for 1530 Shares owned by one member of meetings with the Acquirer Group)SEC.
Appears in 1 contract
The Offer. (a) Provided this Agreement shall not have been terminated in accordance with Section 7.01 and subject Subject to the conditions provisions of this Agreement set forth in Section 6.01 and as promptly soon as practicable, but in no any event less than ten (10) within five business days after the first public announcement of the execution of this Agreement, Acquirer Sub shall, and Investor shall commence (cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, (as amended (the “Exchange Act”hereinafter defined), an offer (the “Offer”) to purchase for cash all of the issued and outstanding Shares at a price of $2.25 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the “Offer Price”), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company shall not tender obligation of Sub to, and of Investor to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares held by it or any of its Subsidiaries tendered pursuant to the Offer. Acquirer shall, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer set forth in Section 6.01, and to its rights to extend the Offer under Section 1.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be made by means of an offer subject to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and the conditions set forth in Exhibit A and to the terms and conditions of this Agreement. The Offer shall initially expire 20 business days after the date of its commencement (subject to the other provisions of this Section 6.01 hereto and providing for an initial expiration date (the “Expiration Date”1.1); provided, however, that unless this Agreement is terminated in accordance with Article X, in which term shall also indicate any later date to which case the Offer is (whether or not previously extended in accordance with this Agreementthe terms hereof) shall expire on such date of twenty termination, at the request of the Company, Investor and Sub shall extend the expiration date of the Offer from time to time to the earlier of (20i) business days the date on which Sub purchases or becomes obligated to purchase that number of Shares that would satisfy the Minimum Condition (as defined in Rule 14d-1 under Exhibit A) and (ii) the Exchange Act) from date 60 business days after the date of commencement of the Offerits commencement. Acquirer shall not decrease the Offer Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Section 6.01 or impose conditions to the Offer in addition to those set forth in Section 6.01, without Without the prior written consent of the Company, authorized by Sub shall not (i) waive the Special Committee. Acquirer shall (which will not require the consent of the Company)Minimum Condition, (Aii) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, if any, to satisfy any such condition that has not by then been satisfied (or waived by Acquirer in its discretion to the extent permitted by Section 6.03) and (B) if, on the Expiration Date, reduce the number of Shares validly tendered and not withdrawn subject to the Offer, (iii) reduce the price per share of either class of the Shares to be paid pursuant to the Offer is less than eighty-five percent Offer, (85%iv) of except as provided in the Shares that are outstanding and not held by any member of a Filing Group (determined on a fully diluted basis, after giving effect to the exercise or conversion of all options, rights and securities exercisable or convertible into voting securities of the Company)following sentence, extend the Offer for up to ten (10) business daysOffer, notwithstanding that if all of the conditions to of the Offer were are satisfied as or waived, or (v) change the form of consideration payable in the date such extensionOffer. In additionNotwithstanding the foregoing, (A) the Offer Price may be increasedSub may, in which event the Offer shall be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, extend the Offer at any time, and from time to time: (Bi) Acquirer may, under if at the terms then scheduled expiration date of the Offer, provide for a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 Offer any of the Exchange Act following conditions to Sub's obligation to accept for payment and pay for the Share Acceptance.
Shares shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; (cii) On the date the Offer is commencedfor any period required by any rule, Acquirer shall file with the United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including the exhibits theretoregulation, the “Schedule TO”). The Schedule TO shall contain interpretation or shall incorporate by reference the Offer to Purchase and a form position of letter of transmittal and summary advertisement (the “Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “Offer Documents”). The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, 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 shall be made by Acquirer with respect to information supplied by the Company for inclusion in the Offer Documents. Acquirer shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case (as and to the extent required by applicable federal securities laws. Each of Acquirer and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect prior to the Expiration Date and Acquirer further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents (and shall provide any comments thereon as soon as practicablehereinafter defined) prior to the filing thereof with the SEC. In addition, Acquirer shall provide to the Company and its counsel in writing any comments that Acquirer or its counsel may receive from the SEC or its staff with respect applicable to the Offer Documents promptly after receipt Offer; (iii) until 10 business days following the expiration of such comments and copies of any written responses and telephonic notification of any verbal responses by Acquirer or its counsel.
(d) Prior the 10 business day period referred to the Share Acceptance, there shall have been contributed to Acquirer, or shall have been properly tendered and not withdrawn in the Offer, all Shares beneficially owned by any member of Acquirer or any member of a group that has filed a Schedule 13D under the Exchange Act (a “Filing Group”) as to which Acquirer or any of its members is a signatory (except for 1530 Shares owned by one member of the Acquirer Group).condition in clause
Appears in 1 contract
Samples: Agreement and Plan of Merger (Prometheus Senior Quarters LLC)
