The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.” (b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01. (c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures. (d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally. (e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares. (f) Notwithstanding anything herein to the contrary: (i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 2 contracts
Sources: Merger Agreement (Mitel Networks Corp), Merger Agreement (Mavenir Systems Inc)
The Offer. (a) Provided that none of the events set forth in Exhibit A hereto shall have occurred and be continuing, as promptly as practicable (ibut in any event not later than five business days after the public announcement of the execution and delivery of this Agreement), Parent shall cause Merger Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act")), an offer to purchase (the "Offer") all outstanding shares of Company Common Stock at a price of $15.00 per share, net to the seller in cash (such price or any higher price as paid pursuant to the Offer, the "Offer Consideration"). Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time the outstanding Shares shall not have been terminated 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 Parent and Merger Sub to commence the Offer, to consummate the Offer and to accept for payment and to pay for Shares validly tendered in accordance with ARTICLE 10 the Offer and (ii) all of the not withdrawn shall be subject only to those conditions set forth in clauses Exhibit A hereto. The Offer shall initially expire 20 business days after the date of its commencement.
(b) Without the prior written consent of Company, Merger Sub shall not (and Parent shall cause Merger Sub not to) (i) decrease or change the form of the Offer Consideration or decrease the number of Shares sought pursuant to the Offer, (ii) amend any term of the Offer in any manner adverse to holders of Shares, (iii) change the conditions to the Offer, (iv) impose additional conditions to the Offer, (v) waive the condition that there shall be validly tendered and not withdrawn prior to the time the Offer expires a number of Shares (together with any Shares then owned by Parent or any of its Subsidiaries) which constitutes a majority of the Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" meaning, as of any date, the number of Shares outstanding (excluding any Shares held as treasury stock by Company or any of its Subsidiaries), together with the Shares which Company may be required to issue pursuant to obligations outstanding at that date under employee stock or similar benefit plans or otherwise (cother than unvested Options), or (vi) extend the expiration date of the Offer beyond the initial expiration date of the Offer (except that Merger Sub may, without the consent of Company, (A) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase Shares is not satisfied, until such time as such condition is satisfied or waived, and (gB) extend the Offer for any period required by any rule, regulation, interpretation or position of Annex I shall then be satisfied the United States Securities and Exchange Commission (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time"SEC") or waived (the staff thereof); provided, however, that, except as set forth above and subject to applicable legal requirements, Merger Sub may amend the Offer or waive any condition to the extent applicable) by Parent and Merger SubOffer in its sole discretion. Assuming the prior satisfaction or waiver of the conditions to the Offer set forth in Exhibit A hereto, as promptly as reasonably practicable Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; providedaccept for payment, however, Merger Sub shall and pay for all Shares validly tendered and not be required withdrawn pursuant to commence the Offer if as soon as practicable after the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The expiration date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01thereof.
(c) Notwithstanding any other terms Parent shall provide or provisions of the Offer or this Agreement, and in addition cause to (and not in limitation of) Merger Sub’s rights be provided to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares purchase pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be liable on a direct and primary basis for the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered performance by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by its obligations under this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 2 contracts
Sources: Merger Agreement (Abt Building Products Corp), Merger Agreement (Louisiana Pacific Corp)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Section 9.01, Purchaser shall (and Parent shall cause Purchaser to) commence the Offer to purchase all of the Shares at the Per Share Amount as promptly as practicable after the date hereof but no later than six (ii6) Business Days after the date hereof. The obligation of Purchaser to accept for payment and pay for all Shares tendered pursuant to the Offer will be subject to the satisfaction of each of the conditions set forth in clauses (b)Annex A. Purchaser expressly reserves the right to waive any such condition, (c) and (g) of Annex I shall then be satisfied (to increase the price per Share payable in the case Offer and to make any other changes in the terms and conditions of clause (b)the Offer, with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (subject, in each case, to the extent applicable) by Parent and Merger Subprovisions of Section 2.01(b). Notwithstanding the foregoing, as promptly as reasonably practicable Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub Purchaser shall not be required to commence the Offer if if, immediately prior to such commencement, anything shall have occurred that gives rise to a right of (1) Parent to terminate this Agreement or (2) Purchaser, pursuant to clause (a)(4) or (b) of Annex A hereto, to not accept for payment or pay for the Company Shares; provided, that for purposes of clause (2) above, references to any other date in clause (a)(4) and (b) of Annex A shall not: (A) have provided be deemed to Parent on a timely basis all information reasonably requested by Parent in connection with be the preparation date of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer; and provided, and to disseminate to holders further, that if Purchaser has not commenced the Offer in accordance with clause (1) or (2) above within forty-five (45) days of Sharesthe date hereof, the Schedule 14D-9. The date on which Merger Sub commences Company shall have the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred right to in terminate this Agreement as the “Offer Commencement Datepursuant to Section 9.01(e).”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer Purchaser shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howevernot, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (A1) amend, modify decrease the Per Share Amount or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to payable in the Offer; , (C2) decrease reduce the Offer Price or the maximum number of Shares sought to be purchased by Merger Sub in the Offer; , (D3) impose any conditions to the Offer in addition to those set forth in Annex A, (4) modify, waive or change the Minimum Condition, (5) amend or modify any other term of the Offer Conditions; in a manner adverse to the Company’s shareholders, or (E6) except as permitted by extend the Offer in a manner other than in accordance with this Agreement.
(c) Purchaser shall from time to time extend the Offer beyond the initial scheduled expiration date, terminate which shall be twenty (20) Business Days following the commencement of the Offer; , for five (F5) except as permitted by this AgreementBusiness Days in each instance (or for such different period to which the Company agrees in its reasonable discretion) if, extend at the scheduled expiration of the Offer (or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(lany extension thereof), any of the conditions to Purchaser’s obligation to accept Shares for payment is not satisfied or waived. In addition, Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable interpretations or positions of the SEC or its staff. Further, if all of the conditions to the Offer are satisfied or waived but the number of Shares validly tendered and not withdrawn, together with the Shares held by Parent and Purchaser, if any, is less than ninety percent (90%) of the Fully Diluted Shares, then upon the expiration date of the Offer (or any extension thereof), Purchaser may provide any “subsequent offering periodperiods,” as such term is defined in, and in accordance with with, Rule 14d-11 of under the Exchange Act; , for an aggregate period not to exceed twenty (20) Business Days (for all such extensions) and, if such subsequent offering periods are provided, Purchaser shall (1) give the required notice of such subsequent offering period and (2) immediately accept and promptly pay for all Shares tendered as of such applicable expiration date.
(d) Promptly upon the satisfaction or waiver (Hsubject to Section 2.01(b)) otherwise amend by Purchaser of the conditions set forth in Annex A, Purchaser shall accept for payment and pay for all Shares as promptly as practicable after the expiration date of the Offer (or waive any extension thereof) (the date of acceptance for payment, the “Acceptance Date”). On or modify any Offer Condition in any manner prior to the date that adversely affects (other than in an immaterial respect) Purchaser becomes obligated to pay for Shares pursuant to the holders of Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares generallythat Purchaser becomes so obligated to pay pursuant to the Offer.
(e) Subject Purchaser shall pay the Per Share Amount (less any Taxes required by applicable Law to Sections 2.01(f)be withheld) net to the seller in cash, (g) without interest, upon the terms and (i), each holder subject to the conditions of the Offer. Purchaser shall pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares shall be entitled for payment pursuant to elect for the Shares held by such holder (i) Offer. Notwithstanding the number immediately preceding sentence and subject to the applicable rules of such Shares that such holder desires to exchange for the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to receive 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 Cash Consideration (Exchange Act. If the payment is to be made to a “Cash Election”)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 will be a condition of payment that the Certificate so surrendered be endorsed properly or otherwise be in proper form for transfer, and (ii) that the number Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of such Shares the payment of the Per Share Amount to a Person other than the registered holder of the Certificate surrendered, or shall have established to the satisfaction of Purchaser that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election Taxes either have been paid or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Sharesare inapplicable.
(f) Notwithstanding anything herein As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the contrary:
Offer. The Schedule TO will contain or incorporate by reference an offer to purchase (ithe “Offer to Purchase”) If the total number of Cash Elections would require aggregate cash payments in excess and forms of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Electionrelated letter of transmittal and other customary documents (the Schedule TO, the number Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”). Parent, Purchaser and the Company agree to correct promptly any information provided by any of Shares them for use in the Offer Documents that shall have become false or misleading, and Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be converted into filed with the right SEC, and the other Offer Documents, as so corrected, to receive the Cash Consideration shall be (A) the total number disseminated to holders of such Shares subject to such Cash Election multiplied by (B) the Cash Proration FactorShares, rounded down in each case as and to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject extent required by applicable U.S. federal securities Laws to all Cash Elections made by all holders of such Shares (before giving give effect to the proration provisions Offer. Purchaser shall give the Company and its counsel a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC. In addition, Parent and Purchaser shall provide the Company and its counsel with copies of this Section 2.01(f))any written comments, multiplied and shall inform them of any oral comments, that Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Cash Consideration. Each Share subject Company and its counsel.
(g) In the event this Agreement is terminated pursuant to such Cash Election that was not converted into Section 9.01 prior to the right Acceptance Date, Parent and Purchaser shall promptly terminate the Offer without accepting any Shares previously tendered and Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to receive return, all tendered Shares to the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderregistered holders thereof.
Appears in 2 contracts
Sources: Merger Agreement (Intelligroup Inc), Merger Agreement (Intelligroup Inc)
The Offer. (aA) Provided that (i) this Agreement shall not have previously been validly terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubSection 7, as promptly as reasonably practicable Merger Sub shallafter the date hereof, and Parent but in any event within nine calendar days (or the next succeeding business day) after the date of this Agreement, Purchaser shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required Offer for all of the outstanding Company Shares (including any Company Shares subject to commence repurchase rights in favor of the Offer if the Company) for consideration per Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation Share consisting of the Offer Documents; Price. (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub Purchaser commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “"Offer Commencement Date").”
(bB) In As promptly as practicable on the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share later of: (i) that amount the earliest date as of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated which Purchaser is permitted under applicable Legal Requirements to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly Company Shares tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”)Offer; and (ii) at the Expiration Date, any earliest date as of which each of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “"Offer Conditions”") shall not have been satisfied or waived waived, Purchaser shall (and Parent shall cause Purchaser to) accept for payment all Company Shares tendered pursuant to the extent applicableOffer (and not validly withdrawn). The obligation of Purchaser to accept for payment Company Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as practicable after the acceptance for payment of any Company Shares tendered pursuant to the Offer, Purchaser shall pay for such Company Shares.
(C) by Parent and Merger Sub. For purposes of Notwithstanding anything to the contrary contained in this Agreement, the “Adjusted Outstanding Share Number” neither Parent nor Purchaser shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): ):
(Ai) amend, modify change or waive the Minimum Condition (as defined in Annex I);
(ii) decrease the number of Company Shares sought to be purchased by Purchaser in the Offer;
(iii) reduce the Offer Price;
(iv) extend or otherwise change the Termination Condition; expiration date of the Offer (Bexcept to the extent required pursuant to Section 1.1(d));
(v) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub payable in the Offer; or 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 Company Shares.
(D) impose Unless extended as provided in this Agreement, the Offer shall expire on the date (the "Initial Expiration Date") that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, if, on the Initial Expiration Date or any conditions subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Purchaser, without the consent of the Company, may (and, to the Offer in addition extent requested by the Company, from time to time, shall) extend (and re-extend) the Offer Conditionsand its expiration date for one or more periods ending no later than 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 10 business days without the prior written consent of the Company. The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), but only if this Agreement is validly terminated in accordance with Section 7.
(E) except Purchaser may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) (and, if immediately following the Acceptance Time (as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by defined in Section 2.01(l1.4(a)), Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 80% of the Company Shares outstanding at that time (which shares beneficially owned shall include shares tendered in the Offer and not withdrawn), to the extent requested by the Company, Purchaser shall provide any “for a subsequent offering period” period of at least 10 business days) in accordance with Rule 14d-11 of under the Exchange Act; or (H) otherwise amend Act following the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generallyAcceptance Time.
(eF) Subject to Sections 2.01(f), (g) and (i), each holder of Shares The Offer Price shall be entitled adjusted to elect for the Shares held by such holder (i) extent appropriate to reflect the number effect of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”)any stock split, and (ii) the number division or subdivision of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election similar transaction with respect to all Company Shares occurring or any part having a record date on or after the date of such holder’s this Agreement and prior to the payment by Purchaser for the Company Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 2 contracts
Sources: Merger Agreement (Inverness Medical Innovations Inc), Merger Agreement (Inverness Medical Innovations Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article IX, Parent shall, or shall cause Offer Sub to, commence an offer to acquire all outstanding shares of SRH Common Stock not owned, directly or indirectly, by the Company at a price of $72.00 per share of SRH Common Stock. Parent shall, and (ii) all shall cause Offer Sub, to use its reasonable efforts to cause the Offer to be consummated at, or as soon as possible following, the Effective Time. The obligation of Parent or Offer Sub to consummate the Offer and to accept for payment and to pay for any shares of SRH Common Stock tendered pursuant thereto shall be subject only to the conditions set forth in clauses Article VIII to this Agreement and to the prior or concurrent consummation of the Merger (bcollectively, the "Offer Conditions"), (c) which are for the sole benefit of Parent and (g) Offer Sub and may be asserted by Parent or Offer Sub regardless of Annex I shall then be satisfied (in the case of clause (b)circumstances giving rise to any such condition, with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent or Offer Sub in whole or in part at any time and Merger Sub, as promptly as reasonably practicable Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offerfrom time to time in its sole discretion; provided, however, Merger that in no event shall Parent or Offer Sub shall not be required purchase any shares of SRH Common Stock pursuant to commence the Offer if the Merger shall not have occurred or concurrently occur. The Company shall not: (A) have provided and SRH agree that no shares of SRH Common Stock held by the Company, SRH or any of their respective Subsidiaries will be tendered to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the or Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Offer. Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Offer Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverwill not, without the prior written consent of the CompanySRH, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (Ai) amend, modify decrease or waive the Minimum Condition or the Termination Condition; (B) change the form of the consideration to be delivered by Merger Sub payable in the Offer, (ii) decrease the number of shares of SRH Common Stock sought pursuant to the Offer; , (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (Diii) impose any additional conditions to the Offer or change the Offer Conditions (provided, that Parent or Investor in addition its sole discretion may waive any such conditions and, in connection therewith, substitute a less restrictive condition) or (v) make any other change in the terms or conditions of the Offer which is materially adverse to the holders of the shares of SRH Common Stock. Notwithstanding the foregoing, Parent and SRH may, without the consent of the Company or SRH, (x) extend the Offer, if at the scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or waived, until such time as all conditions are satisfied or waived, (xi) extend the Offer for any period required by any statute, rule, regulation, interpretation or position of any Governmental Authority applicable to the Offer, and (xii) extend the Offer for any reason on one or more occasions for an aggregate of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (x) and (xi) of this sentence. Subject to the Offer Conditions; (E) except as permitted by Conditions and the terms and conditions of this Agreement, terminate Parent shall, and Parent shall cause Offer Sub to, accept for payment, and pay for, all shares of SRH Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 2 contracts
Sources: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, Article Eight hereof as promptly as reasonably practicable Merger Sub shallpracticable, and in any event within seven (7) Business Days, following execution of this Agreement, Parent (i) shall cause Merger Sub to, the Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all of the Offer; provided, however, Merger Sub shall not be required to commence outstanding Common Shares at the Offer if the Company shall not: Price; (Aii) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation shall, upon commencement of the Offer Documents; (B) have given Parent and its legal counsel but after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on the Schedule 14D-9 prior to the filing thereof TO and all other necessary documents with the SEC Securities and reasonable consideration to any such comments provided Exchange Commission (the “SEC”) and make all deliveries, mailings and telephonic notices required by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 14d-3 under the Exchange Act, is referred to in this Agreement as each case in connection with the Offer (the “Offer Commencement Date.Documents”
); and (biii) In shall use its reasonable best efforts to consummate the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules terms and regulations conditions thereof. The obligation of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated Purchaser to pay for, or may delay the acceptance accept for payment of or payment for, pay for any validly tendered Common Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) pursuant to the Offer will be subject only to the satisfaction or waiver of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I hereto.
(b) Parent on behalf of the Purchaser expressly reserves the right from time to time subject to Section 1.1(c), to waive any of the Tender Offer Conditions (other than the Minimum Condition and the other conditions set forth (as defined in Annex I are referred hereto)) or to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) Price or to make any other changes to in the terms and conditions of the Offer; provided, howeverprovided that, without the prior written consent of the Company, Parent and Merger Sub the Purchaser shall notnot decrease the Offer Price, except pursuant to Section 6.02(b): (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to payable in the Offer; (C) , decrease the Offer Price or the number of Common Shares sought to be purchased by Merger Sub in the Offer; (D) , impose any additional conditions to the Offer or amend any other term of the Offer in addition any manner adverse to the holders of Common Shares. The Offer Conditions; shall remain open until the date that is twenty (E20) except Business Days (as permitted such term is defined in Rule 14d-1(g)(3) under the Exchange Act) after (and including the day of) the commencement of the Offer (the “Expiration Date”), unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the terms of the succeeding two sentences or as may be required by this Agreementapplicable Law, terminate in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; (F) except as permitted by this Agreementprovided, extend or otherwise change however, that the Purchaser may provide a subsequent offering period after the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of under the Exchange Act; . If at any Expiration Date, any of the conditions set forth in Annex I hereto (the “Tender Offer Conditions”) is not satisfied or (H) otherwise amend waived by the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f)Purchaser, (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number Purchaser shall extend the Offer from time to time for periods of such Shares not more than five (5) Business Days each until the date that such holder desires to exchange is twenty (20) Business Days after the initial Expiration Date (for the right avoidance of doubt, the initial Expiration Date is the twentieth Business Day after the commencement of the Offer) (as long as the Company Board continues to receive recommend the Cash Consideration (a “Cash Election”Offer), and (ii) the number Purchaser may extend the Offer from time to time for periods of such Shares that such holder desires to exchange for not more than ten (10) Business Days each until the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form earlier of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator date on which all of which shall be the Cash Available and Tender Offer Conditions are satisfied or waived or (y) the denominator of date on which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration Agreement is terminated in accordance with this Section 2.01(f) Article Eight hereof; provided, however, that, on the Expiration Date, if the waiting period under the HSR Act or under any material applicable foreign statutes or regulations applicable to the Merger shall be converted into have not expired or been terminated, the right Purchaser shall extend the Offer from time to receive time until such expiration or termination under the Share ConsiderationHSR Act or such other material applicable foreign statutes or regulations. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basisNotwithstanding the foregoing, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share the Purchaser and Parent may, without receiving the consent of the prorationCompany, based extend the Expiration Date for any period required by the applicable rules and regulations of the SEC, New York Stock Exchange (“NYSE”) or any other stock exchange or automated quotation system applicable to the Offer. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of the Expiration Date, the Purchaser will accept for payment and pay for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer promptly after the Expiration Date. Without the prior written consent of the Company, the Purchaser shall not accept for payment or pay for any Common Shares in the Offer if, as a result, the Purchaser would acquire less than the number of Common Shares necessary to satisfy the Minimum Condition.
(c) Parent and the Purchaser represent that the Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the percentage date filed with the SEC and on the date first published, sent or given to the Company’s shareholders, shall not contain any untrue statement of all such Shares subject a material fact or omit to Cash Elections 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 is reflected made by Parent or the Purchaser with respect to information supplied by the total amount Company or the dealer-manager in writing for inclusion in the Offer Documents. The Company represents that the information supplied by the Company in writing for inclusion in the Offer Documents will comply in all material respects with the provisions of Shares subject applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s shareholders, shall not contain any untrue statement of a Cash Election tendered 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. Each of Parent and the Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by such holderit for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to shareholders of the Company, in each case, as and to the extent required by applicable federal securities laws.
Appears in 2 contracts
Sources: Merger Agreement (Raven Acquisition Corp.), Merger Agreement (Danaher Corp /De/)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Section 10.01 and (ii) all nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in clauses Annex I hereto (b), the “Offer Conditions”) (cother than the conditions set forth in clause (i) and subclause (gD) of Annex I shall then be satisfied (in the case of clause (bii)), with respect to covenants no earlier than fifteen (15) Business Days following the date of this Agreement and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and no later than September 1, 2016, Merger Sub, as promptly as reasonably practicable Merger Sub Subsidiary shall, and Parent shall cause Merger Sub it to, commence (within the meaning of Rule 14d-2 under the Exchange Act19▇▇ ▇▇▇) the Offer; provided, however, Merger Sub shall not be required to commence Offer at the Offer if Price, payable net to the Company holders in cash, without interest, subject to any deduction or withholding of Taxes required by Applicable Law. The Offer shall not: (A) have provided be subject to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation Offer Conditions. The time scheduled for payment for Shares accepted for payment pursuant to and subject to the conditions of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Closing”, and the date on which Merger Subsidiary commences (within the meaning of Rule 14d-2 under the 19▇▇ ▇▇▇) the Offer is referred to as the “Offer Commencement Date”.”
(b) In Parent and Merger Subsidiary expressly reserve the right to waive (in whole or in part) any of the Offer Conditions at any time and to make any change in the terms of or conditions to the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive including raising the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverprovided that, without the prior written consent of the Company, neither Parent and nor Merger Sub shall not, except pursuant to Section 6.02(b): Subsidiary shall:
(Ai) amend, modify waive or waive change the Minimum Condition or (as defined in Annex I);
(ii) decrease the Termination Condition; Offer Price;
(Biii) change the form of consideration to be delivered by Merger Sub pursuant to paid in the Offer; ;
(Civ) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; ;
(Dv) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) expiration date of the Offer except as permitted by Section 2.01(l)otherwise provided herein; or
(vi) impose additional Offer Conditions or otherwise amend or modify any of the Offer Conditions or terms of the Offer in a manner that is adverse to the beneficial owners of Shares.
(c) Unless extended as provided in this Agreement, provide any “the Offer shall initially be scheduled to expire on the date that is twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 19▇▇ ▇▇▇) after the Offer Commencement Date (such initial expiration date of the Offer or such subsequent offering period” date to which the expiration of the Offer is extended in accordance with Rule 14d-11 the terms of this Agreement, the “Expiration Date”); provided that, unless otherwise agreed in writing by the Parties, such initial Expiration Date shall not be a date that is within five (5) Business Days after the date of a regularly scheduled payroll run of the Exchange Act; Company. Notwithstanding anything to the contrary contained in this Agreement, but subject to the parties’ respective termination rights under Article 7, (i) Merger Subsidiary shall, and Parent shall cause it to, extend the Offer for any period required by any rule, regulation, interpretation or (H) otherwise amend position of the SEC or the staff thereof or Nasdaq applicable to the Offer or waive or modify for any period otherwise required by Applicable Law, (ii) if, as of the then-scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, then, at the request of the Company, Merger Subsidiary shall, and Parent shall cause it to, extend the Offer for one (1) or more periods of up to ten (10) Business Days per extension to permit such Offer Condition to be satisfied or waived and (iii) if, as of the then-scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, Parent may, in its sole discretion (and without the consent of the Company or any manner other Person), extend the Offer (up to the End Date but not thereafter) on one or more occasions, for an additional period of up to ten (10) Business Days per extension, to permit such Offer Condition to be satisfied; provided that, unless otherwise agreed in writing by the Parties, no such extended Expiration Date shall be a date that adversely affects is within five (5) Business Days after the date of a regularly scheduled payroll run of the Company. Notwithstanding anything to the contrary in this Section 2.01(c), in no event shall Merger Subsidiary be required or permitted to extend the Offer beyond the End Date. The Offer may be terminated prior to its then-scheduled Expiration Date, but only if this Agreement is validly terminated in accordance with Article 10.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver by Merger Subsidiary or Parent of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, promptly after the expiration of the Offer, accept for payment all Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”). The obligation of Merger Subsidiary to accept for payment Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other than in an immaterial respect) conditions). Promptly after the holders of Shares generallyAcceptance Time, Merger Subsidiary shall pay the Offer Price for such Shares.
(e) Subject to Sections 2.01(f)On the Offer Commencement Date, (g) Parent and (i), each holder of Shares Merger Subsidiary shall be entitled to elect for the Shares held by such holder (i) file or cause to be filed with the number SEC a tender offer statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer, a form of such Shares that such holder desires letter of transmittal, a form of summary advertisement and any schedule or form required to exchange for be filed pursuant to the right Instructions to receive Schedule TO (collectively, and together with any amendments or supplements thereto, the Cash Consideration (a “Cash ElectionOffer Documents”), ) and (ii) cause the number Offer Documents to be disseminated to beneficial owners of such Shares that such holder desires to exchange for the right to receive extent required by Applicable Law (including the Share Consideration (a “Share Election”1934 Act). Any Cash Election or Share Election The Offer shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and conducted in compliance with Applicable Law (including the Company for that purpose (a “Form of Election”1934 Act), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein Parent and Merger Subsidiary shall cause the Offer Documents to the contrary:
(i) If comply with the total number of Cash Elections would require aggregate cash payments in excess applicable requirements of the Cash Available1934 Act and (ii) not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, such Elections in light of the circumstances under which they were made, not misleading; provided, however, no covenant is made by Parent or Merger Subsidiary with respect to information supplied by the Company for inclusion in the Offer Documents. Parent and Merger Subsidiary shall be subject to proration as follows: cause the information supplied by Parent and its Affiliates specifically for each Cash Electioninclusion in the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the number “Schedule 14D-9”) at the time the Schedule 14D-9 is filed with the SEC not to contain any untrue statement of Shares that shall a material fact or omit to state any material fact required to be converted into stated therein or necessary in order to make the right to receive statements therein, in light of the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factorcircumstances under which they were made, rounded down to the nearest Sharenot misleading. The “Cash Proration Factor” means a fraction (xCompany shall promptly furnish to Merger Subsidiary and Parent in writing all information concerning the Company and its stockholders that may be required by Applicable Law to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by Section 2.01(e) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of or this Section 2.01(f). The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC, and Merger Subsidiary and Parent shall give reasonable and good faith consideration to any comments made by Company and its counsel. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by Applicable Law. Parent and Merger Subsidiary further agree to cause the Offer Documents as so corrected (if applicable) to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws (including the 1934 Act). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the other Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or other Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), multiplied including by participating with Parent and Merger Subsidiary or their counsel in any material discussions or meetings with the Cash Consideration. Each Share subject SEC.
(g) Subject in all respects to such Cash Election that was not converted into the right other terms and conditions of this Agreement and the Offer Conditions, Parent shall cause to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right provided to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied Merger Subsidiary on a pro rata timely basis all of the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the Offer, and shall cause Merger Subsidiary to perform, on a timely basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share all of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderMerger Subsidiary’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Sizmek Inc.), Merger Agreement (Sizmek Inc.)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubSection 11.01, as promptly as reasonably practicable after the date hereof, but in no event later than ten Business Days following the date of this Agreement, Merger Sub shall, and Parent Subsidiary shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act▇▇▇▇ ▇▇▇) the Offer; provided, however, Merger Sub . The Offer shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior subject to the filing thereof with conditions set forth in Annex I hereto (the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9“Offer Conditions”). The date on which Merger Sub Subsidiary commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, Offer is referred to in this Agreement herein as the “Offer Commencement Date”.”
(b) In Merger Subsidiary expressly reserves the Offer, each Share accepted by Merger Sub in accordance with the terms and subject right to the conditions waive any of the Offer shall be exchanged for Conditions and to make any change in the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant conditions to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverprovided that, without the prior written consent of the Company, Parent and Merger Sub Subsidiary shall not, except pursuant to Section 6.02(b): :
(Ai) amend, modify waive or waive change the Minimum Condition or (as defined in Annex I);
(ii) decrease the Termination Condition; Offer Price;
(Biii) change the form of consideration to be delivered by Merger Sub pursuant to paid in the Offer; ;
(Civ) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; ;
(Dv) extend or otherwise change the expiration date of the Offer except as otherwise provided herein;
(vi) impose any conditions to the Offer in addition to other than the Offer Conditions; or
(Evii) except amend, modify or supplement any of the Offer Conditions or other terms of the Offer in a manner adverse to the holders of Shares or make any of the Offer Conditions or other terms of the Offer more onerous.
(c) Unless extended as provided in this Agreement, the Offer shall expire at 12:00 midnight on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding the foregoing, (i) if, at the scheduled or any extended expiration date of the Offer, any Offer Condition is not satisfied and has not been waived, then, (A) Merger Subsidiary may in its discretion, without the consent of the Company and (B) Merger Subsidiary shall to the extent such extension is requested in writing by the Company prior to, or within two hours following notice by Parent to the Company of, the applicable expiration of the Offer, extend the Offer for one or more periods ending no later than the End Date to permit such Offer Condition to be satisfied; provided, however, that (i) no individual extension shall be for a period of more than ten (10) Business Days, (ii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by the rules and regulations of Nasdaq or Applicable Law and (iii) Merger Subsidiary shall extend the Offer for a period of at least four Business Days following the then scheduled expiration date of the Offer if, within the four Business Day period prior to such expiration date, the Board of Directors shall have provided Parent notice pursuant to Section 7.03(d)(ii) with respect to any action intended to be taken in circumstances not involving an Acquisition Proposal. Merger Subsidiary shall not be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the End Date. Merger Subsidiary shall not, without the Company’s prior written consent, extend the Offer if all of the Offer Conditions have been satisfied. Merger Subsidiary may not provide a “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the 1934 Act. Notwithstanding the foregoing, in no event shall Merger Subsidiary be required to extend the Offer at any time that Parent is permitted to terminate this Agreement.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, promptly after the expiration of the Offer, all Shares validly tendered and not validly withdrawn pursuant to the Offer (the time and date on which Shares are first accepted for payment under the Offer, the “Acceptance Date”).
(e) The Offer may not be terminated prior to its then-scheduled expiration date, unless this Agreement is validly terminated in accordance with Section 11.01. If the Offer is terminated or withdrawn by Merger Subsidiary, or this Agreement is terminated in accordance with Section 11.01 (in which case the Offer shall be promptly terminated by Merger Subsidiary), in each case prior to the Acceptance Date, Merger Subsidiary shall not purchase and promptly return, and shall cause any depository acting on behalf of Merger Subsidiary to return, all tendered Shares to the registered holders thereof.
(f) On the Offer Commencement Date, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the offer to purchase, a form of letter of transmittal, a form of notice of guaranteed delivery and a form summary advertisement (and any other required or appropriate ancillary documents) (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (ii) cause the appropriate Offer Documents to be disseminated to holders of Shares to the extent required by applicable U.S. federal securities laws. Each of Parent and Merger Subsidiary shall cause the Schedule TO and the Offer Documents to comply in all material respects with the requirements of the 1934 Act and all other Applicable Law. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of their respective Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the appropriate Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable U.S. federal securities laws or the rules and regulations of Nasdaq. The Company will furnish to Parent the information relating to the Company required by the 1934 Act to be set forth in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any other Offer Document each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given). Parent and Merger Subsidiary shall use their reasonable best efforts to give the Company the opportunity to participate with Parent, Merger Subsidiary or their counsel in any substantive discussions or meetings with the SEC. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation as it may be amended or modified, and until but not after it is withdrawn, in each case as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubSection 11.01, as promptly as reasonably practicable after the date hereof, but in no event later than ten Business Days following the date of this Agreement, Merger Sub shall, and Parent Subsidiary shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act▇▇▇▇ ▇▇▇) the Offer; provided, however, Merger Sub . The Offer shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior subject to the filing thereof with conditions set forth in Annex I hereto (the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9“Offer Conditions”). The date on which Merger Sub Subsidiary commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, Offer is referred to in this Agreement herein as the “Offer Commencement Date”.”
(b) In Merger Subsidiary expressly reserves the Offer, each Share accepted by Merger Sub in accordance with the terms and subject right to the conditions waive any of the Offer shall be exchanged for Conditions and to make any change in the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant conditions to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverprovided that, without the prior written consent of the Company, Parent and Merger Sub Subsidiary shall not, except pursuant to Section 6.02(b): :
(Ai) amend, modify waive or waive change the Minimum Condition or (as defined in Annex I);
(ii) decrease the Termination Condition; Offer Price;
(Biii) change the form of consideration to be delivered by Merger Sub pursuant to paid in the Offer; ;
(Civ) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; ;
(Dv) extend or otherwise change the expiration date of the Offer except as otherwise provided herein;
(vi) impose any conditions to the Offer in addition to other than the Offer Conditions; or
(Evii) except amend, modify or supplement any of the Offer Conditions or other terms of the Offer in a manner adverse to the holders of Shares or make any of the Offer Conditions or other terms of the Offer more onerous.
(c) Unless extended as provided in this Agreement, the Offer shall expire at 12:00 midnight on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding the foregoing, (i) if, at the scheduled or any extended expiration date of the Offer, any Offer Condition is not satisfied and has not been waived, then, (A) Merger Subsidiary may in its discretion, without the consent of the Company and (B) Merger Subsidiary shall to the extent such extension is requested in writing by the Company prior to, or within two hours following notice by Parent to the Company of, the applicable expiration of the Offer, extend the Offer for one or more periods ending no later than the End Date to permit such Offer Condition to be satisfied; provided, however, that (i) no individual extension shall be for a period of more than ten (10) Business Days, (ii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period otherwise required by the rules and regulations of Nasdaq or Applicable Law and (iii) Merger Subsidiary shall extend the Offer for a period of at least four Business Days following the then scheduled expiration date of the Offer if, within the four Business Day period prior to such expiration date, the Board of Directors shall have provided Parent notice pursuant to Section 7.03(d)(ii) with respect to any action intended to be taken in circumstances not involving an Acquisition Proposal. Merger Subsidiary shall not be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the End Date. Merger Subsidiary shall not, without the Company’s prior written consent, extend the Offer if all of the Offer Conditions have been satisfied. Merger Subsidiary may not provide a “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the 1934 Act. Notwithstanding the foregoing, in no event shall Merger Subsidiary be required to extend the Offer at any time that Parent is permitted to terminate this Agreement.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, promptly after the expiration of the Offer, all Shares validly tendered and not validly withdrawn pursuant to the Offer (the time and date on which Shares are first accepted for payment under the Offer, the “Acceptance Date”).
(e) The Offer may not be terminated prior to its then-scheduled expiration date, unless this Agreement is validly terminated in accordance with Section 11.01. If the Offer is terminated or withdrawn by Merger Subsidiary, or this Agreement is terminated in accordance with Section 11.01 (in which case the Offer shall be promptly terminated by Merger Subsidiary), in each case prior to the Acceptance Date, Merger Subsidiary shall not purchase and promptly return, and shall cause any depository acting on behalf of Merger Subsidiary to return, all tendered Shares to the registered holders thereof.
(f) On the Offer Commencement Date, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the offer to purchase, a form of letter of transmittal, a form of notice of guaranteed delivery and a form summary advertisement (and any other required or appropriate ancillary documents) (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (ii) cause the appropriate Offer Documents to be disseminated to holders of Shares to the extent required by applicable U.S. federal securities laws. Each of Parent and Merger Subsidiary shall cause the Schedule TO and the Offer Documents to comply in all material respects with the requirements of the 1934 Act and all other Applicable Law. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of their respective Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall cause the Schedule TO as so corrected to be filed with the SEC and the appropriate Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable U.S. federal securities laws or the rules and regulations of Nasdaq. The Company will furnish to Parent the information relating to the Company required by the 1934 Act to be set forth in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and any other Offer Document each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall promptly provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given). Parent and Merger Subsidiary shall use their reasonable best efforts to give the Company the opportunity to participate with Parent, Merger Subsidiary or their counsel in any substantive discussions or meetings with the SEC. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation as it may be amended or modified, and until but not after it is withdrawn, in each case as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (Shire Pharmaceutical Holdings Ireland Ltd.)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Section 8.1, and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations provided further that the Company is required prepared (in accordance with Section 1.2(b)) to comply file with or the SEC, and to perform prior disseminate to such time) or waived (to holders of shares of Company Common Stock, the extent applicable) by Parent and Schedule 14D-9 on the same date as Merger SubSub commences the Offer, as promptly as reasonably practicable after the date hereof (and in any event no later than the tenth Business Day after the date of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under of the Exchange Act) the Offer; provided, however, Merger Sub shall not be required Offer to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis purchase all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive outstanding Shares at the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal net to the Per Share Cash Purchase Priceseller in cash, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number interest. The obligation of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules payment and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior pursuant to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes subject to the terms and conditions of this Agreement, including the satisfaction of the conditions set forth in Annex A (the “Offer Conditions”), and no other conditions. The Offer Price payable for each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the holder of the Share in cash, without interest, on the terms and conditions set forth in this Agreement and in the Offer. (b) Merger Sub, or Parent on behalf of Merger Sub, expressly reserves the right to waive, in its sole discretion, in whole or in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; providedprovided that, howeverunless otherwise provided by this Agreement or previously approved by the Company in writing (which approval may be granted or withheld by the Company in its sole discretion), without the prior written consent Merger Sub, and Parent on behalf of the CompanyMerger Sub, Parent and Merger Sub shall not, except pursuant subject to Section 6.02(b): applicable Law: (Ai) amend, modify or waive decrease the Minimum Condition or the Termination ConditionOffer Price; (Bii) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub payable in the Offer; (Diii) decrease the maximum number of Shares sought in the Offer; (iv) impose any conditions to the Offer in addition to the Offer Conditions; (Ev) except as permitted by this Agreement, terminate amend or modify any of the OfferOffer Conditions in a manner that adversely affects the holders of Shares; (Fvi) except as permitted by this Agreement, change or waive the Minimum Tender Condition; (vii) extend or otherwise change the Expiration Date; (G) except Date other than as required or permitted by Section 2.01(l)this Agreement; or (viii) otherwise amend or modify any terms of the Offer in a manner that adversely affects the holders of Shares.
(c) Subject to the terms and conditions of this Agreement, provide any “subsequent offering period” unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at one minute after 11:59 p.m., New York City time, on the date that is 20 Business Days following the commencement of the Offer, determined in accordance with Rule 14d-1(g)(3) promulgated under the Exchange Act (the “Initial Expiration Date,” and such date, or such subsequent date to which the expiration of the Offer is extended in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with Section 8.1,
(i) if on any then-scheduled Expiration Date (A) the Minimum Tender Condition shall not have been satisfied or (B) any of the other Offer Conditions shall not have been satisfied (and, to the extent permitted under the terms of this Agreement, shall not have been waived by Parent), then Merger Sub may, and Parent may cause Merger Sub to, without limiting Merger Sub’s and Parent’s obligations under clause (ii) of this Section 1.1(c), extend the Offer on one or more occasions, in consecutive increments of up to five Business Days each (or such longer period as may be agreed by the Company), up to and including the Outside Date, the length of each such period to be determined by Merger Sub (or Parent on its behalf) in its sole discretion, to permit such Offer Condition to be satisfied; and
(ii) (w) 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 or NASDAQ applicable to the Offer; provided that Merger Sub shall not be required to extend the Offer to a date later than the Outside Date;
(x) if on any then-scheduled Expiration Date, any of the Offer Conditions set forth in clauses (b) through (i) of Annex A is not satisfied (and, to the extent permitted under the terms of this Agreement, has not been waived by Parent), but is capable of being satisfied prior to the Outside Date, then, if requested by the Company, Merger Sub (or Parent on its behalf) shall extend the Offer for one or more extension periods of up to five Business Days each (or for such longer period as may be agreed by the Company), up to and including the Outside Date, the length of each such period to be determined by Merger Sub (or Parent on its behalf) in its sole discretion to permit such Offer Condition to be satisfied; and (y) if on any then-scheduled Expiration Date, the Offer Conditions (other than the Minimum Tender Condition) have been satisfied (or, to the extent permitted, have been waived by Parent), but the Minimum Tender Condition has not been satisfied, then, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one or more extension periods of at least five Business Days each, up to and including the Outside Date, the length of each such period to be determined by the Company in its sole discretion to permit such Offer Condition to be satisfied.
(d) Subject to the foregoing, including the requirements of Rule 14d-11 of the Exchange Act; or (H) otherwise amend , and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer or waive or modify any Offer Condition promptly after the Expiration Date. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Merger Sub expressly reserves the right to delay payment for Shares in any manner that adversely affects (other than order to comply with applicable Laws. Any such delay in an immaterial respectpayment shall be effected in compliance with Rule 14e-1(c) under the holders of Shares generallyExchange Act.
(e) Subject Merger Sub shall not terminate the Offer prior to Sections 2.01(fany scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 8. If this Agreement is terminated pursuant to Article 8, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer without accepting any Shares previously tendered. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(f) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 of the Exchange Act), (g) Parent and (i), each holder of Shares Merger Sub shall be entitled to elect for the Shares held by such holder (i) file with the number SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain or incorporate by reference an offer to purchase reflecting the terms and conditions of this Agreement, including the Offer Conditions, and a form of the letter of transmittal and summary advertisement and other ancillary documents and instruments, if any, in respect of the Offer (such Shares that such holder desires to exchange for Schedule TO and the right to receive documents included therein, together with any amendments or supplements thereto, and including exhibits thereto, the Cash Consideration (a “Cash ElectionOffer Documents”), ) and (ii) cause the number Offer Documents to be disseminated to holders of such Shares as and to the extent required by the Exchange Act. Each of Parent and Merger Sub shall cause the Offer Documents to (A) comply in all material respects with the Exchange Act and other applicable Laws and (B) not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that such holder desires the foregoing shall not apply to exchange any information contained or incorporated by reference in any Offer Document that was furnished or provided by the Company. Promptly after the date of this Agreement, the Company shall furnish to Parent and Merger Sub in writing all information concerning the Company and its stockholders that may be required by applicable Law or reasonably requested by Parent or Merger Sub for inclusion in the right to receive the Share Consideration (a “Share Election”)Offer Documents or for any action contemplated by this Section 1.1. Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Each of Parent, Merger Sub and the Company agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that purpose (such information shall have become false or misleading in any material respect, and Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents, 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 Law. The Company and its counsel shall be given a “Form reasonable opportunity to review the Offer Documents before they are filed with the SEC, and Parent and Merger Sub shall give good faith consideration to the reasonable additions, deletions or changes suggested by the Company or its counsel. Parent and Merger Sub shall provide the Company and its counsel with copies of Election”)any written comments, included as part and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive after the letter of election and transmittal accompanying date hereof from the Offer. Holders of record who hold Shares as nominees, trustees SEC or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election its staff with respect to all the Offer Documents promptly after receipt of those comments. The Company and its counsel shall be given a reasonable opportunity to review any written responses to such SEC comments, and Parent shall give good faith consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Parent and Merger Sub shall respond promptly to any part comments of such holder’s Sharesthe SEC or its staff with respect to the Offer Documents.
(fg) Notwithstanding anything herein to If, between the contrary:
(i) If date of this Agreement and the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash ElectionEffective Time, the outstanding Shares are changed into a different number or class of Shares that shall be converted into 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 right to receive Offer Price and the Cash Merger Consideration shall each be (A) the total number of appropriately adjusted to reflect such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderchange.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been validly terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubArticle IX, as promptly as reasonably practicable practicable, and in any event within 10 Business Days, 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 (the “Exchange Act”)) the Offer; provided. The obligations of Merger Sub, howeverand of Parent to cause Merger Sub, to accept for payment and pay for any Shares tendered pursuant to the Offer shall be subject to (i) the satisfaction of the Minimum Condition (as defined in Annex I hereto) and (ii) the satisfaction or waiver of each of the other conditions set forth in Annex I hereto (together with the Minimum Condition, the “Offer Conditions”), upon the terms and conditions hereof. Merger Sub expressly reserves the right, in its sole discretion, to (A) increase the Offer Price, (B) waive any Offer Condition or (C) modify any of the other terms or conditions of the Offer, except that, unless otherwise provided by this Agreement, without the consent of the Company, Merger Sub shall not be required to commence (1) reduce the Offer if Price, (2) change the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent form of consideration payable in connection with the preparation of the Offer Documents; (Bother than by adding consideration), (3) have given Parent and its legal counsel reasonable opportunity to review and comment on reduce the Schedule 14D-9 prior maximum number of Shares subject to the filing thereof with Offer, (4) waive or change the SEC and reasonable consideration Minimum Condition, (5) add any condition to any such comments provided by Parent or its legal counsel; and the Offer Conditions, (C6) be prepared to file with extend the SEC immediately following commencement expiration of the Offer, and except as required or permitted by Section 1.1(b) or (7) modify any Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to disseminate to the holders of Shares.
(b) Unless extended as provided in this Agreement, the Schedule 14D-9. The Offer shall expire at midnight (i.e., one minute after 11:59 p.m., New York City time) on the date on which Merger Sub commences that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Offer, Exchange Act) after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such date and time, is referred to in this Agreement as the “Offer Commencement Initial Expiration Date.”
(b) In or, in the Offer, each Share accepted by Merger Sub event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the terms date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been so extended, the “Expiration Date”). Notwithstanding the foregoing, subject to the conditions of parties’ respective rights to validly terminate this Agreement pursuant to Article IX, Merger Sub may or shall, as applicable, extend the Offer shall be exchanged for the right from time to receive the Offer Price, which at the election of the holder means, for each Share time:
(i) that amount if at any scheduled Expiration Date, the Minimum Condition has not been satisfied or any of cash equal the other Offer Conditions have not been satisfied or waived by Parent or Merger Sub, then Merger Sub shall extend the Offer for one or more consecutive periods of up to the Per Share Cash Purchase Price, without interest 5 Business Days (such amount for each such Shareperiod to end at 5:00 p.m. (New York City time) on the last Business Day of such period) per extension (or such other duration as may be agreed to by Parent and the Company) until the earlier to occur of (A) the date such Offer Conditions are satisfied or waived and (B) the Termination Date (for the avoidance of doubt, as the “Cash Consideration”Termination Date may be extended pursuant to Section 9.1(c)); provided, however, that if the sole then-unsatisfied Offer Condition is the Minimum Condition, Merger Sub may (but shall not be required to) extend the Offer on up to two occasions in consecutive periods of five Business Days each (each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company);
(ii) that number for any period required by applicable Law, including any rule, regulation, interpretation or position of fully paid the Securities and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest Commission (the “Share Consideration,SEC”)) or the staff thereof or the rules of the New York Stock Exchange (“NYSE”) applicable to the Offer; or
(iii) if, in each case subject at any scheduled Expiration Date, (A) the full amount of the Debt Financing has not been funded and will not be available to proration be funded at the Offer Closing and the Closing (other than as a result of a breach by Parent or Merger Sub of any of their representations, warranties or covenants set forth in Section 2.01(f5.7 and Section 7.12 of this Agreement) and subject (B) Parent and Merger Sub acknowledge and agree in writing that (1) the Company may terminate this Agreement pursuant to, and only in accordance with and upon the satisfaction of the requirements set forth in, Section 9.1(d)(iii)(2) and receive the Parent Termination Fee pursuant to, and only in accordance with and upon the satisfaction of the requirements set forth in, Section 9.2(b)(iv)(A) and (2) solely with respect to both (x) any payment of the other provisions Parent Termination Fee in accordance with subclause (1) of this Section 2.01.
1.1(b)(iii) and (c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation ofy) Merger Sub’s rights obligation, and Parent’s obligation to extend and amend cause Merger Sub, to consummate the Offer (subject to the provisions of this Agreement)Offer, Merger Sub shall not be obligated including to accept and thereafter pay for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered all Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half pursuant to the Offer and in accordance with this Section 1.1, all Offer Conditions set forth (1/2I) in paragraphs (c)(ii)(C) and (c)(iv) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); Annex I and (iiII) at other than in respect of any willful or material breach (including any willful and material breach) following the Expiration Datedate of delivery of such notice, any in paragraph (c)(iii) of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred will be deemed to collectively as the “Offer Conditions”) shall not have been satisfied or waived at the Expiration Date after giving effect to any extension pursuant to this clause (iii) and, for the avoidance of doubt, only at such time, Merger Sub shall have the right in its sole discretion to extend the extent applicableOffer on up to four occasions in consecutive periods of five Business Days each (each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company); provided, that Merger SubSub shall not be permitted to extend the Offer to a date later than the Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 9.1(c)). For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall The Offer may be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately terminated prior to the applicable time of determination; plus Expiration Date (B) all Shares that the Company as it may be required to issue upon extended in accordance with this Section 1.1(b)), but only if this Agreement is validly terminated in accordance with Article IX. If the vestingOffer is terminated or withdrawn by Merger Sub, conversionor this Agreement is validly terminated in accordance with Article IX, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time acceptance for payment of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and shall cause any depositary acting on behalf of Merger Sub to guaranteed delivery proceduresreturn, all tendered Shares to the registered holders thereof.
(dc) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes Subject to the terms and conditions of the OfferOffer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub will accept for payment (the time of such acceptance, the “Acceptance Time”) and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Acceptance Time, but in any event not later than three Business Days after the Acceptance Time (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act); provided, howeverthat with respect to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant be under no obligation to Section 6.02(b): (A) amend, modify make any payment for such Shares unless and until such Shares are delivered in settlement or waive the Minimum Condition or the Termination Condition; (B) change the form satisfaction of consideration such guarantee. Parent shall cause to be delivered by provided to Merger Sub all of the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer; .
(Cd) decrease Subject to the obligations of the Company and its subsidiaries pursuant to Section 6.1, the Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Shares), reorganization, recapitalization, reclassification, combination or other exchange of shares with respect to Shares occurring on or after the number date of Shares sought this Agreement and at or prior to be purchased by Merger Sub in the Offer; (D) impose any conditions Acceptance Time, and such adjustment to the Offer in addition Price shall provide to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held same economic effect as contemplated by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject this Agreement prior to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderaction.
Appears in 1 contract
Sources: Merger Agreement (Diamond Resorts International, Inc.)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubArticle VIII hereof, as promptly as reasonably practicable Merger after the date hereof (but in no event later than the tenth (10th) business day following the public announcement of the execution hereof), Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) ), and Parent shall cause Sub to commence, the Offer; providedOffer to purchase all of the issued and outstanding Shares at a price per Share equal to $26.00 net to the holder thereof in cash, however, Merger Sub shall not be without interest and less any taxes required to commence be withheld as described in Section 3.04 (such amount for each Share, or any different amount per Share that may be paid pursuant to the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Sharehereof, the “Cash ConsiderationOffer Price”), . The Company agrees that no Shares held by the Company or any of its Subsidiaries (iiother than any Shares held on behalf of third parties) that number of fully paid and non-assessable Parent Common Shares equal will be tendered pursuant to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01Offer.
(cb) Notwithstanding any other terms or provisions The obligations of the Offer or this AgreementSub, and in addition of Parent to (and not in limitation of) Merger cause Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules payment and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately on or prior to the Acceptance Time Expiration Date (such condition being the “Tendered Shares”) shall be subject only to (i) the satisfaction of the Minimum Condition”); Condition and (ii) at the Expiration Date, any satisfaction or waiver by Sub of the other conditions set forth in Annex I hereto (such conditions, together with the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as Condition, the “Offer Conditions”) shall not have been satisfied or waived (to and the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereofhereof. For purposes The Offer Conditions are for the sole benefit of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub mayand may be waived by Parent or Sub, in whole or in part, at any time or from time to time, in their sole discretion, include or exclude Shares tendered in other than the Offer pursuant to guaranteed delivery procedures.
(d) Minimum Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company. Parent and Sub expressly reserve the right, in their sole discretion, right to (i) increase the Offer Price, (ii) Price or to waive any Offer Condition, and (iii) make any other changes or to modify the terms and or conditions of the Offer; provided, howeverexcept that, without the prior written consent of the Company, neither Parent and Merger nor Sub shall not(i) reduce the Offer Price, except pursuant to Section 6.02(b): (A) amend, modify or waive the Minimum Condition or the Termination Condition; (Bii) change the form of consideration to be delivered by Merger Sub pursuant to payable in the Offer; , (Ciii) decrease the Offer Price or reduce the number of Shares sought to be purchased by Merger Sub in the Offer; , (Div) waive or amend the Minimum Condition, (v) add to the Offer Conditions or impose any other conditions to the Offer in addition to Offer, (vi) extend the expiration of the Offer Conditions; (E) except as required or permitted by this Agreement, terminate (vii) otherwise amend, modify or supplement any Offer Condition or any term of the Offer; (F) except as permitted by Offer set forth in this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition each case in any a manner that adversely affects (other than in an immaterial respect) adverse to the holders of Shares generally.
or (eviii) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election abandon or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying terminate the Offer. Holders of record who hold Shares , except as nominees, trustees or expressly provided in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Sharesthis Agreement.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (Inhibitex, Inc.)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article VIII, then (i) not later than the first Business Day (for purposes of this Agreement, such term having the meaning given in Rule 14d-1 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement, and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubPurchaser shall, as promptly as reasonably practicable Merger Sub shallpracticable, but in no event later than five Business Days after the date of such public announcement, and Parent shall cause Merger Sub Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act) ), the Offer to purchase all of the issued and outstanding Shares at a price per share of $17.00, net to the seller in cash. The Offer shall be made pursuant to the Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing the terms and conditions set forth in this Agreement. The obligation of Purchaser to, and of Parent to cause Purchaser to, commence the Offer; , conduct and consummate the Offer and accept for payment, and pay for, any Shares properly tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Purchaser in its sole discretion, provided, however, Merger Sub that Purchaser shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (waive the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the Company). Purchaser expressly reserves the right, Parent and Merger Sub shall notsubject to compliance with the Exchange Act, to modify the terms of the Offer, except pursuant that, without the express written consent of the Company, neither Parent nor Purchaser shall (i) reduce the number of Shares subject to Section 6.02(b): the Offer, (Aii) amendreduce the Offer Price, (iii) add to or modify or waive the Minimum Condition or Offer Conditions, (iv) except as provided in the Termination Condition; next sentence, change the expiration date of the Offer, (Bv) 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 holders of the Shares. Notwithstanding the foregoing, if on any scheduled expiration date of the Offer, which shall initially be delivered 20 Business Days after the commencement date of the Offer, all Offer Conditions have not been satisfied or waived, Purchaser may, without the consent of the Company, and at the request of the Company shall, from time to time, extend the expiration date of the Offer, and Purchaser may, without the consent of the Company, extend the Offer for any period required by Merger Sub any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the SEC staff applicable to the Offer. Subject only to the conditions set forth in Exhibit A, Purchaser shall, and Parent shall cause Purchaser to, as soon as practicable after the expiration of the Offer, accept for payment, and pay for all Shares validly tendered and not withdrawn that Purchaser becomes obligated to accept for payment pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(eb) Subject On the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (as supplemented or amended from time to Sections 2.01(f)time, (gthe "SCHEDULE 14D-1") and Schedule 13E-3 (i)as supplemented or amended from time
(c) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds sufficient to accept for payment, each holder of and pay for, any and all Shares that Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(d) Purchaser shall be entitled to elect for deduct and withhold from the Shares held by consideration otherwise payable pursuant to the Offer such holder (i) the number of such Shares that such holder desires amounts as may be required to exchange for the right to receive the Cash Consideration (a “Cash Election”), be deducted and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election withheld with respect to all or any part the making of such holder’s Shares.
payment under the Internal Revenue Code of 1986, as amended (f) Notwithstanding anything herein the "CODE"), or under any provision of state, local or foreign tax law; provided, however, that Purchaser shall promptly pay any amounts deducted and withheld hereunder to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments applicable governmental authority, shall promptly file all tax returns and reports required to be filed in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number respect of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factordeductions and withholding, rounded down and shall promptly provide to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders Company proof of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on payment and a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage copy of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holdertax returns and reports.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Upon the terms and (ii) all of subject to the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subthis agreement, as promptly as reasonably practicable following the date hereof, but in any event no later than the tenth Business Day after the initial public announcement of the execution of this agreement (subject to the Company having timely provided any information required to be provided by it pursuant to section 1.1(i) and section 1.2(d)), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offercommence, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by . The obligations of Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this AgreementSub, and in addition of Parent to (and not in limitation of) cause Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment any shares of or payment for, any Company Common Stock validly tendered Shares and not properly withdrawn pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior are subject only to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half satisfaction or waiver (1/2to the extent permitted under this agreement) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex annex I (the Minimum Condition and the other conditions set forth as they may be amended in Annex I are referred to collectively as accordance with this agreement, the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures).
(db) Parent and Merger Sub expressly reserve the right, in their sole discretionto the extent permitted by Law, at any time, to waive, in whole or in part, any Offer Condition (iother than the Minimum Condition) increase or to modify the terms of the Offer Price, (ii) waive in any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offermanner; provided, howeverexcept that, without the prior written consent of the Company, neither Parent and nor Merger Sub shall not(i) reduce the maximum number of shares of Company Common Stock sought to be purchased in the Offer, except pursuant to Section 6.02(b): (Aii) amendreduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition or the Termination Condition; , (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (Div) impose any conditions to the Offer that are in addition to the Offer Conditions; , or modify or amend any existing Offer Condition in a manner adverse to the holders of the Company Common Stock, (Ev) except as otherwise required or permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreementsection 1.1(d), extend or otherwise change the Expiration Date; Time, (Gvi) except as permitted by Section 2.01(l), provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, (vii) increase the Offer Price, except following an Adverse Recommendation Change or the Company’s delivery to Parent of a notice of a Superior Proposal or in the event that Merger Sub is permitted to extend the Offer pursuant to section 1.1(d)(i)(2), or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, unless this agreement is terminated in accordance with article VII.
(c) The Offer shall initially expire at midnight (New York City time) at the end of the day that is 20 Business Days (calculated in accordance with Rule 14d-11 of 14d-1(g)(3) under the Exchange Act; or (H) otherwise amend following the commencement of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with section 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer (i) if on the then scheduled Expiration Time, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied or waived by Parent or Merger Sub if permitted hereunder, for one or more occasions in consecutive increments of up to fifteen Business Days each, as determined by Merger Sub in its sole discretion, in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Merger Sub to waive or modify any Offer Condition, other than the Minimum Condition); provided, however, that (1) Merger Sub shall not be required to extend the Offer to a date later than the Outside Date and (2) if all of the Offer Conditions (other than the Minimum Condition and other than those conditions that by their nature are to be satisfied at the Expiration Time, but subject to such conditions being able to be satisfied) have been satisfied or waived, Merger Sub shall not be required to (but notwithstanding anything to the contrary in this agreement, in its sole discretion may) extend the Offer to a date later than the earlier of (x) the Outside Date and (y) the date that is twenty Business Days after the date that all of the Offer Conditions (other than the Minimum Condition and other than those conditions that by their nature are to be satisfied at the Expiration Time, but subject to such conditions being able to be satisfied) have been satisfied or waived, and (ii) if required by any rule, regulation, interpretation or position of the SEC, the staff thereof or the Nasdaq Global Select Market (the “Nasdaq”) or the New York Stock Exchange (the “NYSE”), except that Merger Sub shall not be required to extend the Offer to a date later than the Outside Date. No extension pursuant to this section 1.1(d) shall be deemed to impair, limit, or otherwise restrict in any manner that adversely affects (other than in an immaterial respect) the holders rights of Shares generallythe parties hereto to terminate this agreement pursuant to the terms of article VII.
(e) Subject On the terms and subject to Sections 2.01(f)the conditions of this agreement, (i) at or as promptly as practicable following the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer, in each case without interest and subject to any applicable withholding of Taxes. Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(f) The Offer Price payable in respect of each share of Company Common Stock shall be paid on the terms and subject to the conditions of this agreement. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) Unless this agreement is terminated pursuant to article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company. In the event this agreement is terminated pursuant to article VII, Merger Sub shall promptly following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer or this agreement is terminated in accordance with this agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares of Company Common Stock to the tendering stockholders in accordance with applicable Law.
(ih) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), each holder reorganization, recapitalization, reclassification, combination, exchange of Shares shares or other similar change with respect to the Company Common Stock occurring on or after the date of this agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall be entitled provide to elect for the Shares held holders of shares of Company Common Stock the same economic effect as contemplated by this agreement prior to such holder action.
(i) On the number date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and other appropriate ancillary offer documents (such Shares that such holder desires Schedule TO and the documents included therein pursuant to exchange for which the right to receive Offer will be made, together with any supplements or amendments thereto, the Cash Consideration (a “Cash ElectionOffer Documents”), and (ii) cause the number Offer Documents to be disseminated to the holders of such Shares Company Common Stock as and to the extent required by United States federal securities Laws. The Company shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel upon request all information concerning the Company that such holder desires is required by the Exchange Act or other applicable Law to exchange be set forth in the Offer Documents and all other information concerning the Company that may be reasonably requested by Parent for inclusion in the right to receive the Share Consideration (a “Share Election”)Offer Documents. Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Each of Parent, Merger Sub and the Company shall 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 purpose (a “Form such information shall have become false or misleading in any material respect, and each of Election”)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 disseminated to the holders of Company Common Stock, included in each case as part and to the extent required by applicable Law. Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all written correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the SEC, on the other hand. Unless there has been an Adverse Recommendation Change, prior to the filing of the letter Offer Documents with the SEC or dissemination thereof to the holders of election and transmittal accompanying Company Common Stock, or responding to any comments of the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election SEC with respect to all the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any part of such holder’s Shares.
(f) Notwithstanding anything herein to comments. Unless the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration Offer has been terminated in accordance with the terms of this Section 2.01(f) agreement, if Parent or Merger Sub receives any comments from the SEC or its staff with respect to the Offer Documents, then each shall be converted into the right use its commercially reasonable efforts to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, respond promptly to such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holdercomments.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have --------- been terminated in accordance with ARTICLE 10 pursuant to Article IX and (ii) all none of the events or conditions set forth in clauses (b)Exhibit A shall have occurred or be existing, (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act) the Offer; provided")), however, Merger Sub shall not be required to commence the Offer if as promptly as practicable (but in no event later than the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with fifth business day from and including the preparation date of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement initial public announcement of the Offer, execution and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions delivery of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes Subject to the terms and conditions of the Offer; provided, howeverPurchaser shall accept for payment at the Offer Consideration (and thereby purchase) and pay for 35,252,986 of the Shares that have been validly tendered and not withdrawn pursuant to the Offer (or such other number of shares representing 50.1% of Company's outstanding shares) prior to its expiration date, as it may be extended in accordance with the terms of the Offer (the "Acceptance Date"). The obligation of Purchaser to commence the Offer and accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Exhibit A hereto including, without limitation, the prior Minimum Condition (as defined in Exhibit A). Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer, except that without the written consent of the Company, Parent and Merger Sub Purchaser shall not, except not (i) reduce or increase the number of Shares sought to be purchased pursuant to Section 6.02(b): the Offer, (Aii) amendreduce the price per Share payable in the Offer, modify or waive the Minimum Condition or the Termination Condition; (Biii) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub paid in the Offer; , (Div) impose any additional conditions to the Offer in addition to or amend any other term of the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) adverse to the holders of Shares generally.
or (ev) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part waive satisfaction of the letter of election and transmittal accompanying Minimum Condition, provided -------- that if the Offer. Holders of record who hold Shares as nominees, trustees or price per Share payable in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash ElectionOffer is increased, the number of Shares that shall of Parent Common Stock into which each Share is to be converted into in the right Forward Merger will be increased to receive that number of Shares of Parent Common Shares having a market value, based upon the Cash Consideration shall be (A) the total number closing price of such Shares subject to such Cash Election multiplied by (B) on the Cash Proration FactorNew York Stock Exchange Composite Tape on the day the offer price per Share is increased, rounded down equal to the nearest ShareOffer Consideration.
(b) On the date of commencement of the Offer, Parent and Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (the "Schedule 14D-1") which will contain the offer to purchase and the form of the related letter of transmittal (the Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively, the "Offer Documents"). The “Cash Proration Factor” means Parent, Purchaser and Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and Parent agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each case, as and to the extent required by applicable federal securities laws. Parent and Purchaser agree to give Company and its counsel a fraction reasonable opportunity to review and comment upon any Offer Document to be filed with the SEC prior to making any such filing and to provide Company and its counsel with copies of any comments Parent, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(xc) Parent and Purchaser agree that Purchaser shall not terminate or withdraw the numerator Offer or extend the expiration date of which the Offer unless at the expiration date of the Offer the conditions to the Offer shall be not have been satisfied or earlier waived; provided that notwithstanding the Cash Available foregoing, -------- Purchaser may, without the consent of Company, extend the Offer on one occasion following the time that all of the conditions to the Offer have been satisfied as of the scheduled expiration date of the Offer for a period not to exceed five business days. Notwithstanding anything to the contrary contained herein, (i) Purchaser may without the consent of Company, extend the Offer so as to comply with applicable rules and regulations of the SEC and (yii) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of so long as this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was Agreement has not converted into the right to receive the Cash Consideration been terminated in accordance with this Section 2.01(f) shall be converted into its terms, if at the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share scheduled expiration date of the prorationOffer any of the conditions to Purchaser's obligation to accept for payment and pay for Shares shall not be satisfied or waived, based Purchaser shall extend the Offer on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderone or more occasions.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Upon the terms and (ii) all of subject to the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subthis agreement, as promptly as reasonably practicable following the date hereof, but in any event no later than the tenth Business Day after the initial public announcement of the execution of this agreement (subject to the Company having timely provided any information required to be provided by it pursuant to section 1.1(i) and section 1.2(d)), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offercommence, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by . The obligations of Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this AgreementSub, and in addition of Parent to (and not in limitation of) cause Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment any shares of or payment for, any Company Common Stock validly tendered Shares and not properly withdrawn pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior are subject only to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half satisfaction or waiver (1/2to the extent permitted under this agreement) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex annex I (the Minimum Condition and the other conditions set forth as they may be amended in Annex I are referred to collectively as accordance with this agreement, the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures).
(db) Parent and Merger Sub expressly reserve the right, in their sole discretionto the extent permitted by Law, at any time, to waive, in whole or in part, any Offer Condition (iother than the Minimum Condition) increase or to modify the terms of the Offer Price, (ii) waive in any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offermanner; provided, howeverexcept that, without the prior written consent of the Company, neither Parent and nor Merger Sub shall not(i) reduce the maximum number of shares of Company Common Stock sought to be purchased in the Offer, except pursuant to Section 6.02(b): (Aii) amendreduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition or the Termination Condition; , (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (Div) impose any conditions to the Offer that are in addition to the Offer Conditions; , or modify or amend any existing Offer Condition in a manner adverse to the holders of the Company Common Stock, (Ev) except as otherwise required or permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreementsection 1.1(d), extend or otherwise change the Expiration Date; Time, (Gvi) except as permitted by Section 2.01(l), provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, (vii) increase the Offer Price, except following an Adverse Recommendation Change or the Company’s delivery to Parent of a notice of a Superior Proposal or in the event that Merger Sub is permitted to extend the Offer pursuant to section 1.1(d)(i)(2), or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, unless this agreement is terminated in accordance with article VII.
(c) The Offer shall initially expire at midnight (New York City time) at the end of the day that is 20 Business Days (calculated in accordance with Rule 14d-11 of 14d-1(g)(3) under the Exchange Act; or (H) otherwise amend following the commencement of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with section 1.1(d), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(d) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer (i) if on the then scheduled Expiration Time, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied or waived by Parent or Merger Sub if permitted hereunder, for one or more occasions in consecutive increments of up to fifteen Business Days each, as determined by Merger Sub in its sole discretion, in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Merger Sub to waive or modify any Offer Condition, other than the Minimum Condition); provided, however, that (1) Merger Sub shall not be required to extend the Offer to a date later than the Outside Date and (2) if all of the Offer Conditions (other than the Minimum Condition and other than those conditions that by their nature are to be satisfied at the Expiration Time, but subject to such conditions being able to be satisfied) have been satisfied or waived, Merger Sub shall not be required to (but notwithstanding anything to the contrary in this agreement, in its sole discretion may) extend the Offer to a date later than the earlier of (x) the Outside Date and (y) the date that is twenty Business Table of Contents Days after the date that all of the Offer Conditions (other than the Minimum Condition and other than those conditions that by their nature are to be satisfied at the Expiration Time, but subject to such conditions being able to be satisfied) have been satisfied or waived, and (ii) if required by any rule, regulation, interpretation or position of the SEC, the staff thereof or the Nasdaq Global Select Market (the “Nasdaq”) or the New York Stock Exchange (the “NYSE”), except that Merger Sub shall not be required to extend the Offer to a date later than the Outside Date. No extension pursuant to this section 1.1(d) shall be deemed to impair, limit, or otherwise restrict in any manner that adversely affects (other than in an immaterial respect) the holders rights of Shares generallythe parties hereto to terminate this agreement pursuant to the terms of article VII.
(e) Subject On the terms and subject to Sections 2.01(f)the conditions of this agreement, (i) at or as promptly as practicable following the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event within three Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer, in each case without interest and subject to any applicable withholding of Taxes. Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(f) The Offer Price payable in respect of each share of Company Common Stock shall be paid on the terms and subject to the conditions of this agreement. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) Unless this agreement is terminated pursuant to article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Company. In the event this agreement is terminated pursuant to article VII, Merger Sub shall promptly following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer or this agreement is terminated in accordance with this agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares of Company Common Stock to the tendering stockholders in accordance with applicable Law.
(ih) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), each holder reorganization, recapitalization, reclassification, combination, exchange of Shares shares or other similar change with respect to the Company Common Stock occurring on or after the date of this agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall be entitled provide to elect for the Shares held holders of shares of Company Common Stock the same economic effect as contemplated by this agreement prior to such holder action.
(i) On the number date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and other appropriate ancillary offer documents (such Shares that such holder desires Schedule TO and the documents included therein pursuant to exchange for which the right to receive Offer will be made, together with any supplements or amendments thereto, the Cash Consideration (a “Cash ElectionOffer Documents”), and (ii) cause the number Offer Documents to be disseminated to the holders of such Shares Company Common Stock as and to the extent required by United States federal securities Laws. The Company shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel upon request all information concerning the Company that such holder desires is required by the Exchange Act or other applicable Law to exchange be set forth in the Offer Documents and all other information concerning the Company that may be reasonably requested by Parent for inclusion in the right to receive the Share Consideration (a “Share Election”)Offer Documents. Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Each of Parent, Merger Sub and the Company shall promptly correct any information supplied by it Table of Contents or on its behalf for inclusion or incorporation by reference in the Offer Documents if and to the extent that purpose (a “Form such information shall have become false or misleading in any material respect, and each of Election”)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 disseminated to the holders of Company Common Stock, included in each case as part and to the extent required by applicable Law. Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all written correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the SEC, on the other hand. Unless there has been an Adverse Recommendation Change, prior to the filing of the letter Offer Documents with the SEC or dissemination thereof to the holders of election and transmittal accompanying Company Common Stock, or responding to any comments of the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election SEC with respect to all the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any part of such holder’s Shares.
(f) Notwithstanding anything herein to comments. Unless the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration Offer has been terminated in accordance with the terms of this Section 2.01(f) agreement, if Parent or Merger Sub receives any comments from the SEC or its staff with respect to the Offer Documents, then each shall be converted into the right use its commercially reasonable efforts to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, respond promptly to such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holdercomments.
Appears in 1 contract
Sources: Merger Agreement (Vmware, Inc.)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article VIII and (ii) all of the conditions set forth in clauses (bb)(i), (cii), (iii), (iv)(A) and (giv)(B) of Annex I hereto shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subhave been satisfied, as promptly as reasonably practicable practicable, and in any event within ten Business Days of the date of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer; provided, however, . The obligations of Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the OfferSub, and of Parent to disseminate cause Merger Sub, to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred accept for payment and pay for any Shares validly tendered (and not validly withdrawn) pursuant to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right subject to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions satisfaction of the Offer or this Agreement, and Minimum Condition (as defined in addition to (and not in limitation ofAnnex I hereto) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Datesatisfaction, any or waiver by Merger Sub or Parent, of each of the other conditions set forth in Annex I hereto (together with the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as Condition, the “Offer Conditions”) shall not have been satisfied or waived (to ), and the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereofhereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (iA) increase the Offer PriceConsideration, (iiB) waive any Offer Condition (other than the Minimum Condition), and or (iiiC) make modify any of the other changes to the terms and or conditions of the Offer; provided, howeverexcept that, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): not (A1) amend, modify or waive reduce the Minimum Condition amount of the Cash Consideration or the Termination Condition; amount of the Milestone Payment (Bprovided, for the avoidance of doubt, that any increase in required withholding Tax due to changes in applicable Law shall not be considered a reduction to the Offer Consideration), (2) impose conditions to the Milestone Payment in addition to the conditions set forth in the form of CVR Agreement (or modify any of the conditions to the Milestone Payment set forth in the CVR Agreement in a manner adverse to holders of CVRs in their capacity as such), (3) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease payable in the Offer Price or (other than by adding consideration), (4) reduce the number of Shares sought subject to be purchased by Merger Sub in the Offer; , (D5) waive, amend or change the Minimum Condition, (6) impose any conditions to the Offer in addition to the Offer Conditions; , (E7) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (8) modify any Offer Condition set forth in this Agreement in a manner adverse to the holders of Shares (in their capacity as such).
(b) The Offer shall initially be scheduled to expire at one minute after 11:59 p.m. (New York City time), on the date that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following (and including the day of) the commencement of the Offer (such expiration date and time, the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, terminate the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been so extended, the “Expiration Date”). Notwithstanding anything to the contrary contained in this Agreement, but subject to the parties’ respective termination rights under Article VIII: (i) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time for any period to the minimum extent required by any Law, or any interpretation or position of the Securities and Exchange Commission (“SEC”), the staff thereof or the Nasdaq Stock Market LLC (“Nasdaq”) applicable to the Offer; (Fii) except if, as permitted of the then-scheduled Expiration Date, any Offer Condition is not satisfied (unless such condition is waivable by Merger Sub or Parent and has been waived), Merger Sub may, in its discretion (and without the consent of the Company or any other Person), extend the Offer for additional periods of between five and ten Business Days per extension (or such other period as the parties hereto may agree), to permit such Offer Condition to be satisfied; and (iii), if, as of the then-scheduled Expiration Date, any Offer Condition is not satisfied (unless such condition is waivable by Merger Sub or Parent and has been waived), at the written request of the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for additional periods specified by the Company of between five and ten Business Days per extension (or such other period as the parties hereto may agree), to permit such Offer Condition to be satisfied; provided, that (1) if, as of any Expiration Date, all Offer Conditions, other than the Minimum Condition, have been satisfied or waived by Parent or Merger Sub in accordance with the terms of this Agreement, neither Parent nor Merger Sub shall be required to extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other on more than in an immaterial respect) three occasions, but may elect to do so with the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) Company’s prior written consent and (i), each holder 2) in no event shall Parent or Merger Sub (x) be required to extend the Offer beyond the earlier to occur of Shares shall be entitled to elect for the Shares held by such holder (i) the number valid termination of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), this Agreement in accordance with Article VIII and (ii) March 29, 2024 (the number “Outside Date”, and such earlier occurrence, the “Extension Deadline”) or (y) be permitted to extend the Offer beyond the Extension Deadline without the prior written consent of such Shares that such holder desires the Company. Nothing in this Section 1.1(b) shall be deemed to exchange for impair, limit or otherwise restrict in any manner the right of the parties hereto to receive terminate this Agreement pursuant to and in accordance with the Share Consideration terms of Article VIII.
(a “Share Election”). Any Cash Election c) Subject to the terms of the Offer and this Agreement and the satisfaction or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parentwaiver of all of the Offer Conditions, Merger Sub will accept for payment (the time of such acceptance, the “Acceptance Time”) and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Company for Offer as soon as practicable after the Expiration Date, provided, that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or Shares validly tendered pursuant to guaranteed delivery procedures that have not yet been “received” (as such term is defined in Section 251(h)(6)(f) of the DGCL), Merger Sub shall be under no obligation to make any part of payment for such holder’s Shares.
(f) Notwithstanding anything herein Shares pursuant to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of Offer unless and until such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderare so received.
Appears in 1 contract
The Offer. (a) Provided that (i) Provided that this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b)pursuant to Article VIII, (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubPurchaser shall, as promptly as reasonably practicable Merger Sub shallafter the date of this Agreement (but in no event later than the tenth (10th) Business Day following the date of this Agreement and, and Parent shall cause Merger Sub towithout the consent of the Company, not to be unreasonably withheld, conditioned or delayed, in no event earlier than the tenth (10th) Business Day following the date of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act) the Offer; providedAct of 1934, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest amended (the “Share Consideration,Exchange Act”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer purchase any (subject to the provisions Minimum Tender Condition) and all Shares in exchange for the Offer Consideration. The obligation of this Agreement), Merger Sub shall not be obligated Purchaser to accept for payment, and, subject to the rules purchase and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number pursuant to the Offer is subject only to the terms of Shares that would represent one Share more than one-half this Agreement, including the prior satisfaction or waiver (1/2to the extent permitted hereunder) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other those conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”). Unless extended in accordance with Section 1.1(a)(ii), the Offer will expire at one (1) shall not have minute after 11:59 p.m. Eastern Time on the twentieth (20th) Business Day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following (and including the day of) the commencement of the Offer (the “Initial Expiration Date”), or, if the Offer has been satisfied or waived extended in accordance with Section 1.1(a)(ii), at the time and date to which the Offer has been so extended (the Initial Expiration Date, and/or such later time and date to which the extent applicable) by Parent and Merger Sub. For purposes of this AgreementOffer has been extended in accordance with Section 1.1(a)(ii), the “Adjusted Outstanding Share Number” shall be Expiration Date”). Purchaser expressly reserves the number of Shares equal right at any time or, from time to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub maytime, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their its sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to Condition or modify or amend the terms and conditions of the Offer; provided, howeverincluding the Offer Consideration, except that, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): Purchaser may not (A) amend, modify decrease the Offer Consideration or waive the Minimum Condition or the Termination Condition; (B) change the form of the consideration to be delivered by Merger Sub pursuant to payable in the Offer; , (CB) decrease the Offer Price or the number of Shares sought pursuant to be purchased by Merger Sub in the Offer; , (C) amend, modify, or waive the Minimum Tender Condition, (D) impose any conditions add to the Offer in addition to Conditions or impose any other conditions on the Offer Conditions; Offer, (E) except as permitted by this Agreementamend or modify the Offer Conditions in a manner adverse to the holders of Shares, terminate the Offer; (F) accelerate or extend the Expiration Date of the Offer except as required or permitted by this AgreementSection 1.1(a)(ii), extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 amend or modify the terms of the Exchange Act; CVR or the CVR Agreement (other than as set forth in the definition thereof) or (H) otherwise amend make any other change in the terms or conditions of the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) is adverse to the holders of Shares generally.
(e) Subject or that would, individually or in the aggregate, reasonably be expected to Sections 2.01(f), (g) and (i), each holder prevent or materially delay the consummation of Shares shall be entitled to elect for the Shares held by such holder (i) Offer or the number Merger or impair the ability of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and Aventis or Purchaser to consummate the Company for that purpose (a “Form of Election”), included as part of Offer or the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s SharesMerger.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article VIII hereof and (ii) all so long as none of the conditions events set forth in clauses on Annex A hereto (b), (cthe "Tender Offer Conditions") shall have occurred and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subare continuing, as promptly as reasonably practicable Merger after the date of this Agreement, Sub shall, shall and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the OfferOffer as promptly as reasonably practicable (but in no event later than five (5) Business Days after the first public announcement of this Agreement by the Company). The initial expiration date of the Offer shall be the twentieth Business Day from and after the date the Offer is commenced (the "Initial Expiration Date"). The obligation of Sub to accept for payment and to pay for any Shares tendered shall be subject to the Tender Offer Conditions, any of which may be waived by Parent or Sub in whole or in part in their sole discretion; provided, however, Merger that Sub shall not be required to commence waive the Offer if Minimum Condition without the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation prior consent of the Offer Documents; (B) have given Company. Parent and its legal counsel reasonable opportunity Sub expressly reserve the right to review and comment on modify the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement terms of the Offer, and including, without limitation, to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of extend the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding beyond any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offerscheduled expiration date; provided, however, that neither Parent nor Sub shall, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant (i) reduce the number of Shares subject to Section 6.02(b): (A) amend, modify the Offer or waive the Minimum Condition or Condition, (ii) reduce the Termination Condition; Offer Price, (Biii) impose any additional conditions to the Offer, (iv) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub payable in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify (v) make any change to the terms of the Offer Condition (including the Tender Offer Conditions) which is materially adverse in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.the
Appears in 1 contract
The Offer. (a) Provided that (i) Upon the terms and subject to the conditions of this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (bincluding Article VII), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable following the date of this Agreement, but in any event no later than the tenth (10th) Business Day after the date of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offercommence, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In at the Offer, each Share accepted by Offer Price. The obligations of Merger Sub in accordance with the terms to, and subject of Parent to the conditions 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 shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal subject only to the Per Share Cash Purchase Price, without interest satisfaction or waiver (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) extent permitted under this Agreement and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2applicable Law) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth as they may be amended from time to time in Annex I are referred to collectively as accordance with this Agreement, the “Offer Conditions”).
(b) The Offer shall not have been satisfied or waived be made by means of an offer to purchase (the “Offer to Purchase”) that describes the extent applicable) by Parent and Merger Sub. For purposes terms of the Offer as set forth in this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in including the Offer pursuant to guaranteed delivery procedures.
(d) Conditions. To the extent permitted by applicable Law, Parent and Merger Sub expressly reserve the right, in their sole discretionat any time, to waive, in whole or in part, any Offer Condition (i) other than the Minimum Condition and the Termination Condition (as defined in Annex I)), to increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes Price or to modify the terms and conditions of the Offer, in each case only in a manner not inconsistent with the terms of this Agreement; provided, however, that, without the prior written consent of the Company, neither Parent and nor Merger Sub shall not(i) reduce the number of shares of Common Stock subject to the Offer, except (ii) reduce the Offer Price or change the form of consideration payable pursuant to Section 6.02(b): the Offer, (Aiii) change, amend, modify or waive the Minimum Condition or the Termination Condition; , (Biv) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions add to the Offer Conditions or impose any other conditions or requirements on the Offer, (v) change, amend, modify or supplement any existing Offer Condition in addition a manner that is adverse in any respect to the holders of Common Stock or that would, individually or in the aggregate, reasonably be expected to prevent or delay the consummation of the Offer or the Merger (except to effect an extension to the Offer Conditions; to the extent expressly permitted by this Section 1.1 or to validly terminate this Agreement in accordance with Article VII) or impair the ability of Parent or Merger Sub to consummate the Offer, (Evi) except as otherwise required or expressly permitted by this Agreement, terminate the Offer; (F) except as permitted by this AgreementSection 1.1(d), extend or otherwise change change, amend or modify the Expiration Date; Time, (Gvii) except as permitted by Section 2.01(l), provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act, (viii) terminate the Offer or (ix) otherwise change, amend, modify or supplement the Offer in any manner adverse to the holders of Common Stock or in any manner that delays, interferes with, hinders or impairs the consummation of the Offer. Subject to Section 1.1(h), the Offer may not be terminated or withdrawn prior to its scheduled Expiration Time (as extended and re-extended in accordance with Section 1.1(d)), unless this Agreement is terminated in accordance with Article VII.
(c) The initial expiration date of the Offer shall be at the time that is one (1) minute following 11:59 p.m., New York City time, on the date that is twenty (20) Business Days (calculated in accordance with Rule 14d-11 of 14d-1(g)(3) under the Exchange Act) after the date the Offer is first commenced (such initial expiration date and time of the Offer, the “Initial Expiration Time”) and, if the Offer has been extended pursuant to and in accordance with Section 1.1(d), the Offer shall expire at the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended in accordance with this Agreement, the “Expiration Time”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Article VII, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer from time to time as follows:
(i) for the minimum period as required by any applicable Law or any rule, regulation, interpretation or position of the SEC, the staff thereof or the Applicable Exchange or the staff thereof, applicable to the Offer, the Schedule 14D-9 or the Offer Documents; provided, however, that Merger Sub shall not be required to extend the Offer to a date later than the Termination Date;
(ii) if, at the then-scheduled Expiration Time, the Company has delivered written notice to Parent in accordance with Section 5.3(e) or Section 5.3(f) that the Company intends to effect an Adverse Recommendation Change and/or terminate this Agreement due to its receipt of a Superior Proposal or the occurrence of an Intervening Event, the Expiration Time shall be extended on one or more occasions so that the Expiration Time does not occur earlier than the close of business on the second (2nd) Business Day after the applicable notice period in Section 5.3(e) or Section 5.3(f) has expired; provided, however, that Merger Sub shall not be required to extend the Offer to a date later than the Termination Date;
(iii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any Legal Action in accordance with Section 8.15 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Merger Sub, the Expiration Time shall be extended (A) for the period during which such action is pending or (HB) otherwise amend by such other time period established by the Governmental Authority presiding over such action, as the case may be; provided, however, that Merger Sub shall not be required to extend the Offer or waive or modify to a date later than the Termination Date; or
(iv) if, at the then-scheduled Expiration Time, any of the Offer Condition in any manner that adversely affects Conditions (other than those conditions that by their terms are to be satisfied at the Offer Closing) has not either been (A) satisfied or (B) waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one (1) or more occasions in an immaterial respectconsecutive periods of five (5) Business Days each (with each such period to end at 5:00 p.m., New York City time, on the holders last Business Day of Shares generallysuch 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 or Conditions; provided, that if at the otherwise scheduled Expiration Time, all of the Offer Conditions (other than the Minimum Condition and the other Offer Conditions that by their terms are to be satisfied at the Offer Closing) shall have been satisfied or waived, Merger Sub may, and Merger Sub shall upon receipt of the Company’s written request, extend the Offer for up to four (4) occasions, in the aggregate, in consecutive periods of five (5) Business Days each (or for such longer period as may be agreed in writing by Parent and the Company); provided, further, that if at the otherwise scheduled Expiration Time, all of the Offer Conditions (other than the Inside Date Condition and the other Offer Conditions that by their terms are to be satisfied at the Offer Closing) shall have been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer until 5:00 p.m., New York City time, on the first Business Day after the Inside Date; provided, further, that Merger Sub shall not be required to extend the Offer to a date later than the Termination Date.
(e) Subject to Sections 2.01(f)Merger Sub shall not, (g) and (i)Parent shall not permit Merger Sub to, each holder of Shares shall be entitled to elect for extend the Shares held by such holder Offer (i) in any manner except (A) as expressly required or permitted pursuant to Section 1.1(d) or (B) with the number prior written consent of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and Company or (ii) in any event beyond the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s SharesTermination Date.
(f) Notwithstanding anything herein On the terms and subject to the contrary:
conditions of this Agreement, including satisfaction or waiver of all of the Offer Conditions (other than those conditions that by their terms are to be satisfied at the Offer Closing), (i) If prior to 9:00 a.m., New York City time, on the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration Business Day in accordance with the terms of this Section 2.01(fAgreement (determined using Rule 14d-1(g)(3) under the Exchange Act) immediately following the Expiration Time, Merger Sub shall, and Parent shall be converted into cause Merger Sub to, consummate the right Offer and irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) all shares of Common Stock validly tendered and not properly withdrawn pursuant to receive the Share Consideration. All prorations resulting from this Section 2.01(fOffer and (ii) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of at or as promptly as practicable following the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.Offer Acceptance Time (but in any event within three
Appears in 1 contract
Sources: Merger Agreement (CDK Global, Inc.)
The Offer. (a) Provided that (i) Unless this Agreement shall not have has been terminated in accordance with ARTICLE 10 Article VII, Parent, Purchaser and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required shall use their reasonable best efforts to comply with or to perform prior to such time) or waived (to complete and file the extent applicable) by Parent Offer Documents, as defined below, and Merger Sub, Schedule 14D-9 and commence the Offer as promptly as reasonably practicable Merger Sub shallbut in no event later than fourteen days from the date hereof. The Offer shall be scheduled to expire at 5:00 p.m., and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment New York City time on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately 21st business day following commencement of the Offer, and to disseminate to holders of Shares, Offer (the Schedule 14D-9"Initial Expiration Date"). The date on which Merger Sub commences Purchaser shall use reasonable best efforts to consummate the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the its terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly Shares tendered Shares pursuant to the Offer (as soon as legally permitted to do so under applicable law and not theretofore accepted shall pay for payment)tendered Shares as soon as practical, if subject to:
(i) immediately prior the condition that pursuant to the Expiration DateOffer, there shall not have been validly tendered and not validly withdrawn that before the Offer expires the number of Shares that would represent one Share more than one-half (1/2) which constitutes at least a majority of the Adjusted Outstanding Share Number, calculated as of outstanding Shares not beneficially owned by Parent or Purchaser immediately prior to the Acceptance Time expiration of the Offer (such condition being the “"Minimum Condition”"); and and
(ii) at the Expiration Date, any of the other conditions set forth in Annex I A to this Agreement.
(b) The Offer shall be made by means of the Offer to Purchase (as defined below) and shall be subject to the Minimum Condition and the other conditions set forth in Annex I are referred A to collectively this Agreement and shall reflect, as appropriate, the “other terms set forth in this Agreement. The Purchaser expressly reserves the right to increase the amount it offers to pay per Share in the Offer Conditions”) shall not have been satisfied or waived (and to extend the Offer to the extent applicable) required by Parent and Merger Sub. For purposes of this Agreementlaw in connection with such an increase, in each case without the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless consent of the conversion or exercise price or other terms and conditions thereofCompany. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without Without the prior written consent of the CompanySpecial Committee, Parent and Merger Sub shall will not, except pursuant :
(i) decrease the Offer Price;
(ii) change the number of Shares to Section 6.02(b): be purchased in the Offer;
(A) amend, modify or waive the Minimum Condition or the Termination Condition; (Biii) change the form of the consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub payable in the Offer;
(iv) amend or waive the Minimum Condition; or
(Dv) impose make any other change in the terms or conditions of the Offer which is adverse to the holders of Shares.
(c) If, on the Initial Expiration Date, all conditions to the Offer will not have been satisfied or waived, the Purchaser may, from time to time, in addition its sole discretion, extend the expiration date; provided, however, that the Offer shall not be extended beyond June 30, 2000. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer.
(d) As soon as reasonably practicable on the date of commencement of the Offer, Parent shall file with the Securities and Exchange Commission (the "SEC") a combined Schedule TO and Schedule 13E-3 under cover of Schedule TO. (The combined Schedule TO and Schedule 13E-3, together with all exhibits and amendments, is collectively referred to as "Schedule TO.") The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the form of the related letter of transmittal (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Parent, the Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become materially incorrect or misleading, and Parent and the Purchaser further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the holders of Shares, in each case as and to the extent required by applicable law. The Company, the Special Committee and their respective counsel shall be given the opportunity to review and comment on the Offer Documents and any amendments to the Offer Conditions; (E) except as permitted by this Agreement, terminate Documents before they are filed with the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”)SEC. Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub Parent and the Company for that purpose (a “Form of Election”)Purchaser shall provide the Company, included as part of the letter of election Special Committee and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form counsel with a copy of Election for each such beneficial holder. For any written comments or telephonic notification of any oral comments from the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election SEC or its staff with respect to all or any part of such holder’s Sharesthe Offer Documents promptly after the comments are received.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (Boise Cascade Office Products Corp)
The Offer. (a) Provided that (i) this Agreement shall not have previously been validly terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubSection 7, as promptly as reasonably practicable Merger Sub shallafter the date hereof, and Parent but in any event within nine calendar days (or the next succeeding business day) after the date of this Agreement, Purchaser shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required Offer for all of the outstanding Company Shares (including any Company Shares subject to commence repurchase rights in favor of the Offer if the Company) for consideration per Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation Share consisting of the Offer Documents; Price. (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub Purchaser commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”).”
(b) In As promptly as practicable on the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share later of: (i) that amount the earliest date as of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated which Purchaser is permitted under applicable Legal Requirements to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly Company Shares tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”)Offer; and (ii) at the Expiration Date, any earliest date as of which each of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived waived, Purchaser shall (and Parent shall cause Purchaser to) accept for payment all Company Shares tendered pursuant to the extent applicableOffer (and not validly withdrawn). The obligation of Purchaser to accept for payment Company Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as practicable after the acceptance for payment of any Company Shares tendered pursuant to the Offer, Purchaser shall pay for such Company Shares.
(c) by Parent and Merger Sub. For purposes of Notwithstanding anything to the contrary contained in this Agreement, the “Adjusted Outstanding Share Number” neither Parent nor Purchaser shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): ):
(Ai) amend, modify change or waive the Minimum Condition (as defined in Annex I);
(ii) decrease the number of Company Shares sought to be purchased by Purchaser in the Offer;
(iii) reduce the Offer Price;
(iv) extend or otherwise change the Termination Condition; expiration date of the Offer (Bexcept to the extent required pursuant to Section 1.1(d));
(v) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub payable in the Offer; (D) impose or amend, modify or supplement any conditions to of the Offer Conditions or terms of the Offer in addition a manner that adversely affects, or would reasonably be expected to adversely affect, the Offer Conditions; holders of Company Shares.
(Ed) except Unless extended as permitted by provided in this Agreement, terminate the Offer; Offer shall expire on the date (F) except as permitted by this Agreement, extend or otherwise change the “Initial Expiration Date”) that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Purchaser, without the consent of the Company, may (and, to the extent requested by the Company, from time to time, shall) extend (and re-extend) the Offer and its expiration date for one or more periods ending no later than 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 10 business days without the prior written consent of the Company. The Offer may be terminated prior to its expiration date (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” such expiration date may be extended and re-extended in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition this Agreement), but only if this Agreement is validly terminated in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generallyaccordance with Section 7.
(e) Subject Purchaser may, in its discretion, elect to Sections 2.01(fprovide for a subsequent offering period (and one or more extensions thereof) (and, if immediately following the Acceptance Time (as defined in Section 1.4(a)), Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 80% of the Company Shares outstanding at that time (g) which shares beneficially owned shall include shares tendered in the Offer and (inot withdrawn), each holder to the extent requested by the Company, Purchaser shall provide for a subsequent offering period of Shares shall be entitled to elect for at least 10 business days) in accordance with Rule 14d-1 1 under the Shares held by such holder (i) Exchange Act following the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s SharesAcceptance Time.
(f) Notwithstanding anything herein The Offer Price shall be adjusted to the contrary:
(i) If extent appropriate to reflect the total number effect of Cash Elections would require aggregate cash payments in excess 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 Company Shares occurring or having a record date on or after the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number date of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down this Agreement and prior to the nearest Share. The “Cash Proration Factor” means a fraction (x) payment by Purchaser for the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderCompany Shares.
Appears in 1 contract
Sources: Merger Agreement (Biosite Inc)
The Offer. Section 2.1 The Offer. ---------
(a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article VIII hereof and (ii) all so long as none of the conditions events set forth in clauses Annex A hereto (b)the "Tender Offer Conditions") shall have occurred and be existing, (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with on or to perform prior to such time) or waived (to the extent applicable) by June 9, 2000, Parent and Merger Sub, as promptly as reasonably practicable Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive at the Offer Price, which at the election . The obligations of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, payment and to pay for any Common Stock tendered shall be subject only to the rules Tender Offer Conditions and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of this Agreement. The Tender Offer Conditions are for the Offersole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Conditions and may be waived by Parent and Sub in whole or in part, in their sole discretion; provided, however, that Sub shall not waive the Minimum Condition (as defined in Annex A) without the prior written consent of the Company. Parent and Sub expressly reserve the right to modify the terms of the Offer, including, without limitation, to extend the Offer beyond any scheduled expiration date but in no event beyond the Termination Date; provided, however, that Sub shall not, without the prior written consent of the Company, Parent and Merger Sub shall not(i) reduce the number of shares of Common Stock to be purchased in the Offer, except pursuant (ii) reduce the Offer Price, (iii) impose additional conditions to Section 6.02(b): the Offer, (A) amend, modify or waive the Minimum Condition or the Termination Condition; (Biv) change the form of consideration payable in the Offer or (v) make any other change to be delivered by Merger Sub pursuant the terms of the Offer which is materially adverse to the holders of Common Stock. Assuming prior satisfaction or waiver of the conditions to the Offer; (C) decrease , Sub shall accept for payment all of the Offer Price shares of Common Stock which are validly tendered and not withdrawn on or prior to the number expiration of Shares sought to be purchased by Merger Sub in the Offer; provided, however, that Sub may from time to time extend the expiration date of the Offer up to the Termination Date.
(Db) impose The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the Tender Offer Conditions. As soon as reasonably practicable on the date the Offer is commenced, Parent and Sub shall file with the Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain (included as an exhibit) or shall incorporate by reference the Offer to Purchase, a form of the related letter of transmittal (the "Letter of Transmittal") and a summary advertisement, as well as all other documents, information and exhibits required by law (which Schedule TO, Offer to Purchase, Letter of Transmittal and such other documents, information and exhibits, together with any conditions supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). Parent and Sub represent and warrant to the Company that the Schedule TO shall comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the Commission and the date first published, sent or given to the holders of the Common Stock, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by Parent or Sub with respect to any information supplied by the Company in writing for inclusion in the Schedule TO. Each of the Company, on the one hand, and Parent and Sub, 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 the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the Commission and the other Offer Documents as so corrected to be disseminated to holders of the Common Stock, in each case as and to the extent required by applicable federal securities laws. Parent and Sub shall provide the Company and its counsel with copies of the Offer Documents prior to filing them 9 with the Commission and with copies of any written comments Parent and Sub or their counsel may receive from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel an opportunity to participate in addition the response of Parent or Sub to the Offer Conditions; (E) except as permitted such comments, including by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend participating with Parent and Sub or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition their counsel in any manner that adversely affects (other than in an immaterial respect) discussions with the holders of Shares generallyCommission or its staff.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (New England Business Service Inc)
The Offer. (a) Section 2.1 The Offer. Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article VIII hereof and (ii) all so long as none of the conditions events set forth in clauses on Annex A hereto (b), (cthe "Tender Offer Conditions") shall have occurred and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subare continuing, as promptly as reasonably practicable Merger after the date of this Agreement (but in any event not later than seven (7) Business Days after the first public announcement of the execution and delivery of this Agreement), Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) 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 Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger obligation of Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules payment and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Ordinary Shares tendered in the Offer pursuant and not withdrawn shall be subject only to guaranteed delivery procedures.
(d) 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 Merger 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, in their sole discretion, right to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to modify the terms and conditions of the Offer; , provided, however, that neither Parent nor Sub shall (and Parent shall cause Sub not to), without the prior written consent of the Company, Parent and Merger Sub shall not, except (i) reduce the number of Ordinary Shares to be purchased pursuant to Section 6.02(b): the Offer, (Aii) amendreduce the Ordinary Share Offer Price, modify or waive (iii) impose any additional conditions to the Minimum Condition or the Termination Condition; Offer, (Biv) change the form of consideration to be delivered by Merger Sub pursuant payable in the Offer, (v) make any change to the terms of the Offer; , including without limitation the Tender Offer Conditions, which is materially adverse in any manner to the holders of the Ordinary Shares, (Cvi) decrease amend or waive the Offer Price Minimum Condition, except that Parent or Sub may, at any time, amend the Minimum Condition to equal the number of Ordinary Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 representing a majority of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess votes of the Cash Availableoutstanding Ordinary Shares on a fully-diluted basis or (vii) extend the expiration date of the Offer, such Elections shall be subject to proration as followsprovided, however, that Parent or Sub may extend the expiration date of the Offer: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) as required by any rule, regulation or interpretation of the total number of such Shares subject to such Cash Election multiplied by Commission; or (B) in the Cash Proration Factor, rounded down event that any condition to the nearest Share. The “Cash Proration Factor” means Offer is not satisfied and, to the extent permitted herein, is not waived as of the scheduled expiration date of the Offer, for such successive periods for up to ten (10) Business Days at a fraction time (x) the numerator of which or such longer period as shall be approved by the Cash Available and (yCompany) until the denominator of which shall be the product earlier of the aggregate number acceptance for payment of any Ordinary Shares subject to all Cash Elections made by all holders of such Shares (before giving effect pursuant to the proration provisions Offer 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 of the Offer, the Tender Offer Conditions (assuming for this Section 2.01(f)), multiplied by purpose that the Cash Consideration. Each Share subject to such Cash Election that was Minimum Condition has not converted into the right to receive the Cash Consideration been amended in accordance with clause (vi) of the proviso contained above in this Section 2.01(f2.1(a)) shall be converted into the right to receive the Share Considerationhave not been satisfied. All prorations resulting from In addition, notwithstanding anything in this Section 2.01(f2.1(a) shall be applied on to the contrary, if not already disclosed in the Offer to Purchase (as defined below), Parent and Sub may amend the Schedule TO (as defined below) to permit the announcement of a pro rata basissubsequent offering period (as such term is defined in Rule 14d-1 promulgated under the Exchange Act (the "Subsequent Offer Period")) to the Offer, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.and Sub
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article IX hereof, and (ii) all of the conditions set forth in clauses (b), (cprovided that Company has fulfilled its obligation to provide information to Parent and Purchaser as contemplated by Section 1.1(c) and (g) of Annex I shall then be satisfied (in is prepared to file the case of clause (b), with respect to covenants and obligations that the Company is required to comply Schedule 14D-9 contemporaneously with or to perform prior to such time) or waived (to the extent applicable) immediately following filing by Parent and Merger SubPurchaser of the Offer Documents with the Securities and Exchange Commission (the “SEC”), subject to there being no statute, rule, regulation, legislation of, or order, decree, judgment, injunction or ruling by, a Governmental Authority of competent jurisdiction enjoining, restraining, making illegal, or otherwise prohibiting the commencement of the Offer, as promptly as reasonably practicable Merger Sub shall(but in no event later than seven (7) Business Days) after the date of this Agreement, Purchaser shall (and Parent shall cause Merger Sub Purchaser to, ) commence (within the meaning of Rule 14d-2 under of the Exchange Act) an offer to purchase all outstanding shares of Company Common Stock at the Offer Price. Each of Parent and Purchaser shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof. Subject to the applicable terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, promptly after the expiration of the Offer, accept for payment and pay for (after giving effect to any required withholding Tax pursuant to Section 1.1(f)), all shares of Company Common Stock validly tendered pursuant to the Offer and not withdrawn (the time and date of acceptance for payment, the “Acceptance Date”).
(b) Purchaser reserves the right to waive, in whole or in part, any Tender Offer Condition or modify the terms of the Offer; provided, however, Merger Sub that without the prior written consent of Company, or except as contemplated by this Agreement, Purchaser shall not, and Parent shall not permit Purchaser to, other than in accordance with Section 1.1(e), decrease the Offer Price or change the form of consideration payable in the Offer, waive or amend the Minimum Condition, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, extend the Offer other than in a manner pursuant to, and in accordance with, this Section 1.1(b), impose additional conditions to the Offer, amend any of the Tender Offers Condition, in a manner that broadens such conditions or amend any other term of the Offer in any manner adverse to the Company Stockholders. The Offer shall remain open until 12:00 midnight, New York City, New York time, on the date that is twenty (20) Business Days after the commencement (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) of the Offer (the “Expiration Date”), unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the succeeding sentence, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, (i) Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the Nasdaq that is applicable to the Offer and (ii) in the event that any of Tender Offer Conditions are not satisfied or waived as of any then-scheduled Expiration Date, Purchaser shall extend the Offer for successive extension periods of ten (10) Business Days; provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this sentence, in no event shall Purchaser be required to commence extend the Offer if beyond the Outside Date. Purchaser may provide for a subsequent offering period (within the meaning of Rule 14d-11 under the Exchange Act), and one or more consecutive extensions thereof, after the Expiration Date in accordance with Rule 14d-11 of not more than twenty (20) Business Days in the aggregate. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and promptly pay for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to such subsequent offering period. Nothing contained in this paragraph shall affect any termination rights of the parties in Article IX. Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 9.1.
(c) On the date of commencement of the Offer, Parent and Purchaser shall not: (Ai) have provided file or cause to Parent on a timely basis all information reasonably requested by Parent in connection be filed with the preparation of SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer which shall contain the offer to purchase and related letter of transmittal and summary advertisement and other ancillary documents and instruments required thereby pursuant to which the Offer will be made (collectively with any supplements or amendments thereto, the “Offer Documents; ”), and (Bii) have given use their respective reasonable best efforts to cause the Offer Documents to be disseminated to the Company Stockholders as and to the extent required by the Exchange Act. Parent and Purchaser shall cause the Offering Documents to comply in all material respects with the Exchange Act and all other requirements of Law. Company and its legal counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 Offer Documents prior to their filing with the SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by Company and its counsel. Parent and Purchaser agree to provide Company with (i) any comments or other communications, whether written or oral, that may be received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof and prior to responding thereto, and (ii) a reasonable opportunity to provide comments on that response (to which reasonable and good faith consideration shall be given) and to participate in such response, including by participating in any discussions with the SEC. Notwithstanding the foregoing, in connection with any action by Parent or Purchaser in response to or as a result of any action by Company or the Company Board permitted by Section 7.2(e), Parent and Purchaser shall not be required to provide Company the opportunity to review or comment on (or include comments proposed by Company in any provision of) the Offer Documents, or any amendment or supplement thereto, with respect to such action, the reasons for such actions or any additional information reasonably related to such actions. If at any time prior to the filing thereof Effective Time, any information relating to the Offer, the Merger, Company, Parent, Purchaser or any of their respective Affiliates, is discovered by Company or Parent which should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be filed with the SEC and reasonable consideration disseminated to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the OfferCompany Stockholders, as and to disseminate the extent required by applicable Law or any applicable rule or regulation of any stock exchange. Company shall furnish to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under Parent and Purchaser all information concerning Company required by the Exchange Act, is referred Act to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery proceduresDocuments.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (A) amend, modify provide or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration cause to be delivered by Merger Sub provided to Purchaser on a timely basis the funds necessary to pay for any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought and shall cause Purchaser to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by fulfill its obligations under this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject The Offer Price shall be adjusted appropriately to Sections 2.01(freflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Company Common Stock occurring on or after the date hereof and prior to the date of acceptance of any particular shares tendered in the Offer or any subsequent offering period provided for by Parent and the Purchaser pursuant to Section 1.1(b). In addition, if the aggregate of (gwithout duplication) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”)shares of Company Common Stock issued and outstanding, and plus (ii) the number of such Shares that such holder desires shares of Company Common Stock issuable upon the exercise of outstanding derivative securities, including warrants and other convertible or exchangeable securities or rights to exchange for the right to receive the Share Consideration purchase Company Common Stock, plus (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1iii) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into shares of Company Common Stock (x) issuable upon the right exercise of Company Stock Options, (y) subject to receive Company SARs and (z) subject to Company RSUs, all as of September 11, 2009, exceeds 91,855,809, then Parent and Purchaser may reduce the Cash Consideration shall be Offer Price by an amount not to exceed the product of (A) the total number of Offer Price immediately before such Shares subject to such Cash Election reduction, multiplied by (B) the Cash Proration Factorquotient of (i) such excess, rounded down to divided by (ii)(A) 91,855,809 plus (B) the nearest Shareamount of such excess (such reduction in the Offer Price, a “Capitalization Adjustment”). The “Cash Proration Factor” means Company agrees that upon a fraction (x) Capitalization Adjustment, the numerator of which Company Board shall be reaffirm the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before Company Recommendations giving effect to such Capitalization Adjustment, and the proration provisions Company Board shall not effect an Adverse Recommendation Change as a result of such Capitalization Adjustment. Each of Parent, Purchaser and Company shall amend and supplement the Offer Documents and Schedule 14D-9 as promptly as practicable to reflect such Capitalization Adjustment.
(f) Each of Purchaser and the Paying Agent shall be entitled to deduct and withhold from the Offer Price to any holder of a Certificate or a Book-Entry Share, as the case may be, such amounts as it reasonably determines that it is required to deduct and withhold with respect to the making of such payment under the Code, or any other applicable provision of Law. To the extent that amounts are so withheld and paid to the appropriate Governmental Authority by Purchaser or the Paying Agent, as the case may be, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Certificate or Book-Entry Share, as applicable, in respect of which such deduction and withholding was made by Purchaser or the Paying Agent, as the case may be.
(g) In the event that this Agreement is terminated pursuant to Section 2.01(f)9.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty four (24) hours of such termination), multiplied by irrevocably and unconditionally terminate the Cash Consideration. Each Share subject Offer made pursuant to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderAgreement.
Appears in 1 contract
Sources: Merger Agreement (Adobe Systems Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (Subject to the extent applicable) by following sentence, Purchaser shall (and Parent and Merger Subshall cause Purchaser to), as promptly as reasonably practicable Merger Sub shalland in no event later than five business days after the date of this Agreement, and Parent shall cause Merger Sub towith prior notice to the Company, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall . The obligations of Purchaser to (and of Parent to cause Purchaser to) accept for payment and pay for any Shares validly tendered and not be required withdrawn pursuant to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the satisfaction or waiver (to the extent permitted under applicable Laws) of the conditions set forth in Annex B (the “Tender Offer Conditions”), and no other conditions. The initial expiration date of the Offer shall be exchanged for 12:00 midnight (Eastern Time) at the right to receive end of the day on the date that is 20 business days after the date on which the Offer Price, which at the election of the holder means, for each Share was commenced (idetermined as provided in Rule 14d-1(g)(3) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act) (the initial “Expiration Time” and any expiration time and date established pursuant to an extension of the Offer in accordance with this Agreement, also an Expiration Time), shall not be obligated . Purchaser expressly reserves the right (i) to pay for, or may delay increase the acceptance for payment of or payment for, Offer Price and (ii) to waive any validly tendered Shares pursuant condition to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicablepermitted under applicable Laws) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to modify the terms and conditions of the Offer; provided, howeverexcept that, without the prior written consent of the Company, Parent and Merger Sub Purchaser shall not, except pursuant to Section 6.02(b): not (A) amendreduce the number of Shares subject to the Offer, modify or (B) reduce the Offer Price, (C) waive the Minimum Tender Condition, (D) add to the Tender Offer Conditions or amend or modify any Tender Offer Condition in any manner adverse to the holders of Shares, (E) except as otherwise provided in this Section 1.1, extend the Expiration Time, or the Termination Condition; (BF) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub payable in the Offer; , provided, that nothing in this clause (DF) impose any conditions shall limit Purchaser’s ability to the Offer provide additional cash consideration in addition to the Offer Conditions; Price. Notwithstanding the foregoing, (Ex) except as permitted by this AgreementPurchaser may, terminate without the Offer; consent of the Company, (Fi) except as permitted by this Agreement, extend or otherwise change the Expiration Date; Time for one or more consecutive increments of not more than 20 business days each (G) except as permitted the length of such period to be determined by Section 2.01(lParent or Purchaser), provide if at any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify scheduled Expiration Time any Tender Offer Condition in any manner that adversely affects has not been satisfied or waived (other than in an immaterial respect) to the holders of Shares generally.
(e) Subject to Sections 2.01(fextent permitted under applicable Laws), (gii) and (i), each holder of Shares shall be entitled to elect extend the Expiration Time for the Shares held minimum period required by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Electionany rule,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (Einstein Noah Restaurant Group Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Section 8.1 hereof and (ii) all none of the conditions events set forth in clauses (b), (c) and (g) of Annex I hereto shall then have occurred and be satisfied (in the case of clause (b)existing, with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable Merger Sub shall, and Parent Purchaser 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")) the Offer; providedOffer as promptly as reasonably practicable, however, Merger Sub shall not be required but in no event later than seven business days following the public announcement by Parent and the Company of the execution of this Agreement. The obligation of Purchaser to commence accept for payment and pay for any Shares tendered pursuant to the Offer if shall be subject to the satisfaction of the conditions set forth in Annex I. Purchaser expressly reserves the right from time to time, subject to Sections 1.1(b) and 1.1(d) hereof, without the consent of the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to waive any such comments provided by Parent condition, to increase the Per Share Amount, or its legal counsel; to make any other changes in the terms and (C) be prepared to file with the SEC immediately following commencement conditions of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences Per Share Amount shall be net to the seller in cash, without interest, subject to reduction only for any applicable withholding taxes or stock transfer taxes payable by the seller. The Company agrees that no Shares held by the Company or any Subsidiary (as hereinafter defined) will be tendered pursuant to the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In Without the prior written consent of the Company, Purchaser shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer, each Share accepted by Merger Sub (ii) seek to purchase less than all outstanding Shares, (iii) amend or waive satisfaction of the Minimum Condition (as defined in accordance with Annex I) or (iv) impose conditions to the Offer in addition to those set forth in Annex I hereto, or amend any other term or condition of the Offer in any manner materially adverse to the holders of Shares. Upon the terms and subject to the conditions of the Offer shall be exchanged and this Agreement, Purchaser will accept for payment and purchase, as soon as permitted under the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer applicable law (subject to the provisions first proviso to Section 8.1(c)(i)) (the "Share Purchase Date") all Shares validly tendered and not withdrawn prior to the expiration of this Agreement)the Offer. On or prior to the Share Purchase Date, Merger Sub Parent shall not provide or cause to be provided to Purchaser the funds necessary to pay for Shares that Purchaser becomes obligated to accept for payment, andand pay for, subject pursuant to the rules and regulations of the SEC (including Offer. Purchaser shall not provide for a subsequent offering period in accordance with Rule 14e-1(c) promulgated 14d-11 under the Exchange Act), .
(c) The Offer shall not be obligated made by means of an offer to pay for, or may delay purchase (the acceptance for payment of or payment for, any validly tendered Shares pursuant "Offer to Purchase") having only the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I hereto. As soon as reasonably practicable on the date the Offer is commenced, Purchaser shall file with the Securities and Exchange Commission (the Minimum Condition "SEC") a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the other conditions set forth "Schedule TO") with respect to the Offer that will comply in Annex I all material respects with the provisions of all applicable Federal securities laws, and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto, are referred to collectively herein as the “"Offer Conditions”) shall not have been satisfied Documents"). Parent and Purchaser agree promptly to correct the Schedule TO or waived (the Offer Documents if and to the extent applicable) that it or they shall have become false or misleading in any material respect (and the Company, with respect to written information supplied by it specifically for use in the Schedule TO or the Offer Documents, shall promptly notify Parent of any required corrections of such information and shall cooperate with Parent and Merger SubPurchaser with respect to correcting such information) and to supplement the Schedule TO or the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall supplement the information provided by it specifically for use in the Schedule TO or the Offer Documents to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case to the extent required by applicable Federal securities laws. For purposes of this Agreement, the “Adjusted Outstanding Share Number” The Company and its counsel shall be given a reasonable opportunity to review and comment on the number of Shares equal to Schedule TO and any Offer Documents before they are filed with the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery proceduresSEC.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, The Offer to Purchase shall provide (i) increase for an initial expiration date of 20 business days (as defined in Rule 14d-1 under the Exchange Act) from and including the date of commencement of the Offer Price(the "Initial Expiration Date"). Purchaser shall extend the expiration date of the Offer until 5:00 p.m., Eastern time, on the earlier of (i) the thirtieth (30th) business day following the public announcement by Parent and the Company of the execution of this Agreement (which thirty business days shall for this purpose include the date of such public announcement) and (ii) waive any if a tender offer (other than the Offer) shall have been commenced for all or a portion of the Shares, the business day immediately preceding the initial expiration date of such tender offer (such earlier date, the "Extended Expiration Date"). Unless this Agreement shall have been terminated pursuant to Section 8.1 hereof, Purchaser agrees that it shall not, without the consent of the Company, terminate or withdraw the Offer Condition, and or (iiiexcept as provided in this Section 1.1(d)) make any other changes to extend the terms and conditions expiration date of the Offer; provided, however, that, subject to the immediately following sentence, without the prior written consent of the Company, Parent and Merger Sub Purchaser shall not, except have the right to terminate or withdraw the Offer or extend the Offer from time to time if at the then-scheduled expiration date of the Offer the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived. Unless this Agreement shall have been terminated pursuant to Section 6.02(b): 8.1, if at the then-scheduled expiration date of the Offer, the conditions to the Offer described in Annex I hereto (A) amend, modify or waive other than the Minimum Condition Condition) shall not have been satisfied or earlier waived, upon the Termination Condition; request of the Company, Purchaser shall from time to time extend the expiration date of the Offer for up to a maximum of 20 business days in the aggregate (Bit being understood and agreed that the period from the Initial Expiration Date to and including the Extended Expiration Date shall be counted in such 20-business-day period) change for all such extensions (the form period of consideration each such extension to be delivered determined by Merger Sub Purchaser), provided that at the time of such extension any such condition is reasonably capable of being satisfied and provided further that the failure of any such condition to be satisfied shall not result from a willful breach by the Company of any of its covenants and agreements contained in this Agreement, until the date Purchaser becomes obligated, pursuant to the terms of the Offer and this Agreement, to accept for payment and pay for Shares tendered pursuant to the Offer; (C) decrease . Notwithstanding the foregoing, Purchaser may, without the consent of the Company, extend the expiration date of the Offer Price (as it may be extended) for any period required by applicable rules, regulations, interpretations or positions of the SEC or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions staff thereof applicable to the Offer in addition to the Offer Conditions; (E) except as permitted or for any period required by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generallyapplicable law.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all Section 7.1, on the tenth business day after the initial public announcement of the conditions set forth in clauses (b)execution hereof, (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable Merger Sub Purchaser shall, and Parent shall cause Merger Sub 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 Shares at a price of $55.00 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject only to the conditions set forth in Annex A hereto; provided, however, Merger Sub shall not be required to commence that Parent -------- ------- may designate another wholly owned, direct or indirect subsidiary of Parent as the Offer if the Company shall not: bidder (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 14d-1(g) under the Exchange Act, is referred to ) in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted in which case reference herein to Purchaser shall be deemed to apply to such subsidiary, as appropriate. The Company shall not tender Shares held by Merger Sub in accordance with it or by any of its subsidiaries pursuant to the Offer. The Purchaser shall, and Parent shall cause the Purchaser to, on the terms and subject to the conditions prior satisfaction or waiver of the conditions to the 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 exchanged for the right made by means of an offer to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest purchase (the “Share Consideration,”), in each case subject "Offer to proration as Purchase") containing the terms set forth in Section 2.01(f) this Agreement and subject to only the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I A hereto and providing for an expiration date (the Minimum Condition "Expiration Date") initially of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement. The Purchaser shall not, and Parent shall cause the other Purchaser not to, decrease the Offer Price or decrease the number of Shares sought, amend the conditions to the Offer set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied A or waived (impose conditions to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal Offer in addition to the sum of: (those set forth in Annex A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the Company. The Purchaser may, without the consent of the Company, (i) 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 periods of not more than ten (10) business days, if Parent and Merger Sub shall notPurchaser are not in material breach of this Agreement and if any condition to the Offer is not satisfied or waived and such condition is reasonably capable of being satisfied and (ii) if, except on the Expiration Date, the Shares validly tendered and not withdrawn pursuant to Section 6.02(b): the Offer equal at least seventy percent (70%) of the outstanding Shares but less than ninety percent (90%) of the outstanding Shares (on a fully diluted basis, as such term is defined in Annex A), (A) amendextend the Offer on one occasion for up to ten (10) business days, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “for a subsequent offering period” period of up to ten (10) business days in accordance with Rule 14d-11 of under the Exchange Act; or , in each case (Hx) otherwise amend notwithstanding that all the conditions to the Offer have been satisfied as of the date such extension or waive or modify subsequent offering period, as the case may be, is announced, and (y) in the case of an extension, so long as Purchaser irrevocably waives the satisfaction of any of the conditions to the Offer Condition in any manner that adversely affects (other than in an immaterial respectthe case of paragraph (iii)(a) of Annex A hereto with respect to any statute, rule, regulation, judgment or injunction arising after the holders date such extension is announced) that may subsequently become unsatisfied during any such extension. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of Shares generally.
(e) Subject to Sections 2.01(f)the Company. If, (g) and (i)as of the Expiration Date, each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number condition set forth in paragraph (iii)(b) of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”)Annex A has not been satisfied or waived, and the Company shall have cooperated with Parent in using all reasonable efforts to cause such condition to be satisfied, or (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or condition set forth in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one clause (1) of paragraph (iii)(c) of Annex A has not been satisfied or waived, and the failure of such Form condition to be satisfied is not the result of Election for each such beneficial holder. For the avoidance Company's breach of doubt, a holder of Shares may make a Cash Election and/or a Share Election with or failure in any material respect to all perform or any part comply with its material obligations, agreements and covenants herein to be performed by it through the Expiration Date, then, at the written request of the Company, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer in increments of five (5) business days each until the earliest to occur of (w) the satisfaction or waiver of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Availablecondition, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall Parent determines that such condition could not reasonably be the Cash Available and expected to be satisfied on or prior to September 30, 2001, (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions termination of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration Agreement in accordance with this Section 2.01(fits terms, and (z) September 30, 2001.
(c) On the date the Offer is commenced, 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 stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. 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 Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false and misleading in any material respect and the 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 converted into given a reasonable opportunity to review and comment upon the right Schedule TO (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Parent shall, and shall cause the Purchaser to, provide the Company and its counsel in writing with any comments that Parent, Purchaser or their counsel may receive from the Share Consideration. All prorations resulting from this Section 2.01(fSEC or its staff with respect to the Offer Documents promptly after receipt of such comments and with a reasonable opportunity to participate in the preparation of any responses thereto by Parent, Purchaser or their counsel, including copies of any written responses and telephonic notification of any verbal responses.
(d) Parent shall provide or cause to be applied on a pro rata basis, such that each holder who tenders Shares subject provided to a Cash Election bears its proportionate share Purchaser all of the proration, based on funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderOffer.
Appears in 1 contract
Sources: Merger Agreement (Xtra Corp /De/)
The Offer. (a) Provided that (i) this Agreement shall not have been validly terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubArticle VIII, as promptly as reasonably practicable practicable, and in any event within 10 Business Days after the date of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the “Exchange Act”)) the Offer; provided. The obligations of Merger Sub, howeverand of Parent to cause Merger Sub, to accept for payment and pay for any Shares tendered pursuant to the Offer shall be subject to (i) the satisfaction of the Minimum Condition (as defined in Exhibit A hereto) and (ii) the satisfaction (or waiver by Parent or Merger Sub) of each of the other conditions set forth in Exhibit A hereto (together with the Minimum Condition, the “Offer Conditions”) and the terms and conditions hereof. Merger Sub expressly reserves the right, in its sole discretion, to (A) increase the Offer Price, (B) waive any Offer Condition or (C) modify any of the other terms or conditions of the Offer, except that, unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not be required to commence (1) reduce the Offer if Price, (2) change the Company shall not: form of consideration payable in the Offer (Aother than by adding consideration), (3) have provided reduce the number of Shares sought to Parent on a timely basis all information reasonably requested by Parent be purchased in connection with the preparation Offer, (4) waive or change the Minimum Condition or the condition set forth in clause (b)(v) in Exhibit A hereto, (5) add to the Offer Conditions, (6) extend the expiration of the Offer Documents; other than in accordance with Section 1.1(e), (B7) have given Parent and its legal counsel reasonable opportunity provide for any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act, (8) take any action (or fail to review and comment on take any action) that would result in the Schedule 14D-9 prior Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL, or (9) modify any Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the filing thereof with holders of Shares or that would, individually or in the SEC and reasonable consideration aggregate, reasonably be expected to any such comments provided by prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of the Parent or its legal counsel; and (C) be prepared Merger Sub to file with the SEC immediately following commencement of consummate the Offer, and the Merger or the other transactions contemplated hereby.
(b) The Offer shall initially be scheduled to disseminate to holders of Shares, expire at one minute after 11:59 p.m. (New York City time) on the Schedule 14D-9. The date on which Merger Sub commences that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Offer, Exchange Act) after the commencement (within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as ) of the Offer (the “Offer Commencement Initial Expiration Date.”
(b) In or, in the Offer, each Share accepted by Merger Sub event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been so extended, the “Expiration Date” ).
(c) Subject to the terms of the Offer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub will accept for payment (the date and time of such acceptance, the “Acceptance Time”) and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable (and in any event within one Business Day) after the Expiration Date. The Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the seller of such Share in cash, without interest, subject to the deduction or withholding of any Taxes, on the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01Agreement.
(cd) Notwithstanding any other terms or provisions of the Offer or Unless this Agreement, and in addition Agreement is validly terminated pursuant to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement)Section 8.1, Merger Sub shall not be obligated terminate or withdraw the Offer prior to accept for payment, and, subject to any scheduled expiration date without the rules and regulations prior written consent of the SEC (including Rule 14e-1(c) promulgated under Company in its sole and absolute discretion. In the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any event this Agreement is validly tendered Shares terminated pursuant to the Offer (and not theretofore accepted for payment)Section 8.1, if Merger Sub shall (i) immediately prior to promptly (and in any event within one Business Day) following such termination irrevocably and unconditionally terminate the Expiration Date, there shall Offer and(ii) not have been validly tendered and not validly withdrawn that number of acquire any Shares that would represent one Share more than one-half (1/2) of pursuant thereto. If the Adjusted Outstanding Share Number, calculated as of immediately Offer is terminated in accordance with this Agreement prior to the Acceptance Time Time, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the tendering stockholders.
(e) Unless this Agreement shall have previously been validly terminated in accordance with Article VIII, Merger Sub may extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied (and, in the case of any Offer Condition that by its nature is to be satisfied at the Acceptance Time, is not then capable of being satisfied) or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub may extend the Offer for one or more occasions in consecutive increments of up to 10 Business Days each, the length of each such condition being period to be determined by Parent (or such longer period as may be agreed by the “Minimum Condition”Company and Parent) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Merger Sub to waive any Offer Condition to the extent permitted hereunder); and (ii) at Merger Sub may extend the Expiration DateOffer for the minimum period required by applicable Law, any interpretation or position of the other conditions set forth in Annex I Securities and Exchange Commission (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer ConditionsSEC”) shall not have been satisfied or waived its staff or the Nasdaq Stock Market LLC (to the extent applicable“NASDAQ”) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offerits staff; provided, however, that, other than as contemplated by the foregoing clause (ii), without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease not extend the Offer Price or to a date that is more than 40 Business Days after the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Initial Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein Subject in all respects to the contrary:other terms and conditions of this Agreement and the Offer Conditions, 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.
(ig) If At or prior to the total number of Cash Elections would require aggregate cash payments in excess of Acceptance Time, Parent shall duly authorize, execute and deliver, and shall ensure that the Cash AvailableRights Agent duly authorizes, such Elections shall be subject to proration as follows: for each Cash Electionexecutes and delivers, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderCVR Agreement.
Appears in 1 contract
Sources: Merger Agreement (89bio, Inc.)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article VIII hereof and (ii) all so long as none of the conditions events set forth in clauses on Annex A hereto (b), (cthe "Tender Offer Conditions") shall have occurred and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subare continuing, as promptly as reasonably practicable Merger after the date of this Agreement (but in any event not later than seven (7) Business Days after the first public announcement of the execution and delivery of this Agreement), Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) 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 Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger obligation of Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules payment and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Ordinary Shares tendered in the Offer pursuant and not withdrawn shall be subject only to guaranteed delivery procedures.
(d) 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 Merger 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, in their sole discretion, right to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to modify the terms and conditions of the Offer; , provided, however, that neither Parent nor Sub shall (and Parent shall cause Sub not to), without the prior written consent of the Company, Parent and Merger Sub shall not, except (i) reduce the number of Ordinary Shares to be purchased pursuant to Section 6.02(b): the Offer, (Aii) amendreduce the Ordinary Share Offer Price, modify or waive (iii) impose any additional conditions to the Minimum Condition or the Termination Condition; Offer, (Biv) change the form of consideration to be delivered by Merger Sub pursuant payable in the Offer, (v) make any change to the terms of the Offer; , including without limitation the Tender Offer Conditions, which is materially adverse in any manner to the holders of the Ordinary Shares, (Cvi) decrease amend or waive the Offer Price Minimum Condition, except that Parent or Sub may, at any time, amend the Minimum Condition to equal the number of Ordinary Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 representing a majority of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess votes of the Cash Availableoutstanding Ordinary Shares on a fully-diluted basis or (vii) extend the expiration date of the Offer, such Elections shall be subject to proration as followsprovided, however, that Parent or Sub may extend the expiration date of the Offer: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) as required by any rule, regulation or interpretation of the total number of such Shares subject to such Cash Election multiplied by Commission; or (B) in the Cash Proration Factor, rounded down event that any condition to the nearest Share. The “Cash Proration Factor” means Offer is not satisfied and, to the extent permitted herein, is not waived as of the scheduled expiration date of the Offer, for such successive periods for up to ten (10) Business Days at a fraction time (x) the numerator of which or such longer period as shall be approved by the Cash Available and (yCompany) until the denominator of which shall be the product earlier of the aggregate number acceptance for payment of any Ordinary Shares subject to all Cash Elections made by all holders of such Shares (before giving effect pursuant to the proration provisions Offer 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 of the Offer, the Tender Offer Conditions (assuming for this Section 2.01(f)), multiplied by purpose that the Cash Consideration. Each Share subject to such Cash Election that was Minimum Condition has not converted into the right to receive the Cash Consideration been amended in accordance with clause (vi) of the proviso contained above in this Section 2.01(f2.1(a)) shall be converted into the right to receive the Share Considerationhave not been satisfied. All prorations resulting from In addition, notwithstanding anything in this Section 2.01(f2.1(a) shall be applied on to the contrary, if not already disclosed in the Offer to Purchase (as defined below), Parent and Sub may amend the Schedule TO (as defined below) to permit the announcement of a pro rata basis, subsequent offering period (as such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of term is defined in Rule 14d-1 promulgated under the proration, based on Exchange Act (the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder."Subsequent Offer
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Section 11.01 and (ii) all nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in clauses Annex I hereto (b), the “Offer Conditions”) (cother than the conditions set forth in clause (i) and subclause (gD) of Annex I shall then be satisfied (in the case of clause (bii), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub), as promptly as reasonably practicable Merger Sub after the date hereof, but in no event later than 10 Business Days following the date of this Agreement, Acquisition Subsidiary shall, and Parent shall cause Merger Sub it to, commence (within the meaning of Rule 14d-2 under the Exchange Act1▇▇▇ ▇▇▇) the Offer; provided, however, Merger Sub shall not be required Offer to commence purchase for cash all of the outstanding Shares at the Offer if the Company Price. The Offer shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior be subject to the filing thereof with Minimum Condition and the SEC and reasonable consideration to any such comments provided satisfaction, or waiver by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement Acquisition Subsidiary, of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9other Offer Conditions. The date on which Merger Sub Acquisition Subsidiary commences the Offer, (within the meaning of Rule 14d-2 under the Exchange Act, 1▇▇▇ ▇▇▇) the Offer is referred to in this Agreement as the “Offer Commencement Date”.”
(b) In Parent and Acquisition Subsidiary expressly reserve the right to waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive including raising the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverprovided that, without the prior written consent of the Company, neither Parent and Merger Sub shall not, nor Acquisition Subsidiary shall:
(i) waive or change the Minimum Condition;
(ii) decrease the Offer Price (except pursuant to Section 6.02(b): 2.01(e)(ii);
(A) amend, modify or waive the Minimum Condition or the Termination Condition; (Biii) change the form of consideration to be delivered by Merger Sub pursuant to paid in the Offer; ;
(Civ) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; ;
(Dv) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) expiration date of the Offer except as permitted by Section 2.01(l)otherwise provided herein; or
(vi) impose additional Offer Conditions or otherwise amend, provide modify or supplement any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; Offer Conditions or (H) otherwise amend terms of the Offer or waive or modify any Offer Condition in any a manner that adversely affects (other than in an immaterial respect) affects, or would reasonably be expected to adversely affect, the holders of the Shares generally.
(ec) Unless extended as provided in this Agreement, the Offer shall expire at midnight, New York City time, on the date that is thirty-four (34) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 1▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding the foregoing, (A) Acquisition Subsidiary shall, and Parent shall cause it to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or Nasdaq applicable to the Offer or for any period otherwise required by Applicable Law and (B) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Acquisition Subsidiary shall, and Parent shall cause it to, extend the Offer for one or (as needed) more periods of five (5) Business Days each (or such shorter period as the Company agrees to or such longer period as the parties hereto may agree); provided, however, that in no event shall Acquisition Subsidiary be required to extend the Offer to a date later than the End Date. Notwithstanding the foregoing clause (B), if at the end of the initial expiration date (or the expiration date as extended in accordance with Section 2.01(f), if necessary), all of the Offer Conditions are satisfied other than the Minimum Condition, then Acquisition Subsidiary shall be required to, and Parent shall cause it to, extend the Offer for one additional period of five (5) Business Days, and if at the end of such five (5) Business Day period, the Minimum Condition continues to not be satisfied, Acquisition Subsidiary shall be required to, and Parent shall cause it to, extend the Offer for one more period of five (5) Business Days; provided, however that if at the end of any expiration date as of which the Offer is scheduled to expire, (i) all of the Offer Conditions are satisfied other than the Minimum Condition and (ii) an Acquisition Proposal shall have been publicly announced or a tender offer or exchange offer shall have been commenced by a Third Party (and in each case not withdrawn), Acquisition Subsidiary shall be required to, and Parent shall cause it to, extend the Offer for one or (as needed) more periods of five (5) Business Days each (or such shorter period as the Company agrees to or such longer period as the parties hereto may agree) until the earlier of (i) February 28, 2014 and (ii) five (5) Business Day after the date such Acquisition Proposal or tender or exchange offer has been withdrawn, after which Acquisition Subsidiary shall not be required to extend the Offer ; provided further, that in no event shall Acquisition Subsidiary be required to extend the Offer to a date later than the End Date. The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 2.01(c)), but only if this Agreement is validly terminated in accordance with Article 11.
(d) Subject to Sections 2.01(fthe terms and conditions set forth in this Agreement and to the satisfaction of the Minimum Condition and the satisfaction or waiver of the other Offer Conditions, Acquisition Subsidiary shall, and Parent shall cause it to, promptly after the expiration of the Offer, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”), (g) . The obligation of Acquisition Subsidiary to accept for payment and (i), each holder of pay for all Shares tendered pursuant to the Offer shall be entitled subject only to elect the satisfaction of the Minimum Condition and the satisfaction or waiver of each of the other Offer Conditions (and shall not be subject to any other conditions). Promptly after the Acceptance Time, Acquisition Subsidiary shall pay the Offer Price for such Shares.
(e) On the Shares held by such holder Adjustment Date, the Company shall deliver to Parent and Acquisition Subsidiary its calculation of (i) the number of such Shares that such holder desires to exchange for the right to receive the Estimated World Wide Cash Consideration (a “Cash Election”), Amount and (ii) the number World Wide Cash Amount Statement reflecting such Estimated World Wide Cash Amount, and reasonable supporting documentation for each of the foregoing. The Company and Parent shall work in good faith to resolve any disputes regarding the Company’s calculations of the Estimated World Wide Cash Amount and World Wide Cash Amount Statement within two (2) days following the date such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed calculations were received by Parent, Merger Sub and in the event such agreement is reached, shall within such two (2) day period mutually amend (if necessary) the World Wide Cash Amount Statement originally delivered by the Company for that purpose to reflect any agreed-upon changes thereto. If the parties are not able to reach agreement within such two (a “Form of Election”)2) day period, included as part within one day after the end of the letter four (4) Business Day period starting the day after the Adjustment Date, the Company shall instead deliver to Parent and Acquisition Subsidiary its calculation of election (i) the Actual World Wide Cash Amount and transmittal accompanying the Offer. Holders of record who hold Shares as nominees(ii) World Wide Cash Amount Statement reflecting such Actual World Wide Cash Amount, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election and reasonable supporting documentation for each of the foregoing. The Company and Parent shall work in good faith to resolve any disputes regarding the Company’s calculation of the Actual World Wide Cash Amount and World Wide Cash Amount Statement within two (2) days following the date such beneficial holdercalculations were received by Parent. The Company, shall within such two (2) day period revise (if necessary) the World Wide Cash Amount Statement originally delivered by the Company to reflect any changes to the Actual World Wide Cash Amount and/or World Wide Cash Amount Statement that the Company in good faith determines appropriate (in each case taking into account any such disputes). For the avoidance of doubt, a holder but without limiting the other provisions and definitions of this Agreement, the final determination of the Actual World Wide Cash Amount and the World Wide Cash Adjusted Amount shall be made solely by the Company in accordance with such provisions and definitions. Following final determination of the World Wide Cash Adjusted Amount set forth in the World Wide Cash Amount Statement (whether calculated using the Estimated World Wide Cash Amount or Actual World Wide Cash Amount, as determined as set forth above), the Offer Price shall be adjusted as follows in the circumstances set forth below:
(i) if the World Wide Cash Adjusted Amount is greater than $9,350,000, the Offer Price shall be increased, so that from and after the Adjustment Date the Offer Price shall be equal to (x) $2.00, plus (y) an amount equal to the quotient (rounded to the nearest whole $0.01) of (A) the amount by which the World Wide Cash Adjusted Amount exceeds $9,300,000 divided by (B) the number of Shares may make issued and outstanding as of the Adjustment Date on a Fully Diluted basis.
(ii) if the World Wide Cash Election and/or Adjusted Amount is less than $9,250,000, the Offer Price shall be decreased, so that from and after the Adjustment Date the Offer Price shall be equal to (x) $2.00, less (y) an amount equal to the quotient (rounded to the nearest whole $0.01) of (A) the amount by which the World Wide Cash Adjusted Amount is less than $9,300,000 divided by (B) the number of Shares issued and outstanding as of the Adjustment Date on a Share Election with respect Fully Diluted basis. For the avoidance of doubt, if the World Wide Cash Adjusted Amount is equal to all or any part of such holder’s Sharesgreater than $9,250,000 and less than or equal to $9,350,000, the Offer Price shall not be adjusted.
(f) Notwithstanding anything herein In the event the Offer Price is adjusted pursuant to Section 2.01(e), then Acquisition Subsidiary shall, and Parent shall cause it to, no later than 9:00 AM New York Time on the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess Business Day following final determination of the World Wide Cash AvailableAdjusted Amount as set forth in the World Wide Cash Amount Statement (as revised, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (Aif applicable) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) provide notice of such adjustment to the numerator Company’s stockholders pursuant to and in compliance with Rule 14e-1(b) under the 1934 Act and any other applicable rules and regulations of which shall be the Cash Available SEC or other Applicable Law and (y) to the denominator extent that the date as of which the Offer is scheduled to expire is less than ten (10) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 1▇▇▇ ▇▇▇) following such notice, extend the Offer such that the expiration date is ten (10) Business Days following such notice. In the event the Offer Price is not adjusted pursuant to Section 2.01(e), then Acquisition Subsidiary shall, and Parent shall be cause it to, no later than 9:00 AM New York Time on the product Business Day following final determination of the aggregate number World Wide Cash Adjusted Amount as set forth in the World Wide Cash Amount Statement (as revised, if applicable) (x) provide notice of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect the foregoing to the proration provisions Company’s stockholders and (y) to the extent that the date as of this Section 2.01(f))which the Offer is scheduled to expire is less than five (5) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 1▇▇▇ ▇▇▇) following such notice, multiplied by extend the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, Offer such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all expiration date is five (5) Business Days following such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holdernotice.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Section 8.1 hereof and (ii) all none of the conditions events set forth in clauses (b), (c) and (g) of Annex I hereto shall then have occurred and be satisfied (in the case of clause (b)existing, with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable Merger Sub shall, and Parent Purchaser 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")) the Offer; providedOffer as promptly as reasonably practicable, however, Merger Sub shall not be required but in no event later than seven business days following the public announcement by Parent and the Company of the execution of this Agreement. The obligation of Purchaser to commence accept for payment and pay for any Shares tendered pursuant to the Offer if shall be subject to the satisfaction of the conditions set forth in Annex I. Purchaser expressly reserves the right from time to time, subject to Sections 1.1(b) and 1.1(d) hereof, without the consent of the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to waive any such comments provided by Parent condition, to increase the Per Share Amount, or its legal counsel; to make any other changes in the terms and (C) be prepared to file with the SEC immediately following commencement conditions of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences Per Share Amount shall be net to the seller in cash, without interest, subject to reduction only for any applicable withholding taxes or stock transfer taxes payable by the seller. The Company agrees that no Shares held by the Company or any Subsidiary (as hereinafter defined) will be tendered pursuant to the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In Without the prior written consent of the Company, Purchaser shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer, each Share accepted by Merger Sub (ii) seek to purchase less than all outstanding Shares, (iii) amend or waive satisfaction of the Minimum Condition (as defined in accordance with Annex I) or (iv) impose conditions to the Offer in addition to those set forth in Annex I hereto, or amend any other term or condition of the Offer in any manner materially adverse to the holders of Shares. Upon the terms and subject to the conditions of the Offer shall be exchanged and this Agreement, Purchaser will accept for payment and purchase, as soon as permitted under the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer applicable law (subject to the provisions first proviso to Section 8.1(c)(i)) (the "Share Purchase Date") all Shares validly tendered and not withdrawn prior to the expiration of this Agreement)the Offer. On or prior to the Share Purchase Date, Merger Sub Parent shall not provide or cause to be provided to Purchaser the funds necessary to pay for Shares that Purchaser becomes obligated to accept for payment, andand pay for, subject pursuant to the rules and regulations of the SEC (including Offer. Purchaser shall not provide for a subsequent offering period in accordance with Rule 14e-1(c) promulgated 14d-11 under the Exchange Act), .
(c) The Offer shall not be obligated made by means of an offer to pay for, or may delay purchase (the acceptance for payment of or payment for, any validly tendered Shares pursuant "Offer to Purchase") having only the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I hereto. As soon as reasonably practicable on the date the Offer is commenced, Purchaser shall file with the Securities and Exchange Commission (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”"SEC") shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.a Tender Offer
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, The Offer to Purchase shall provide (i) increase for an initial expiration date of 20 business days (as defined in Rule 14d-1 under the Exchange Act) from and including the date of commencement of the Offer Price(the "Initial Expiration Date"). Purchaser shall extend the expiration date of the Offer until 5:00 p.m., Eastern time, on the earlier of (i) the thirtieth (30th) business day following the public announcement by Parent and the Company of the execution of this Agreement (which thirty business days shall for this purpose include the date of such public announcement) and (ii) waive any if a tender offer (other than the Offer) shall have been commenced for all or a portion of the Shares, the business day immediately preceding the initial expiration date of such tender offer (such earlier date, the "Extended Expiration Date"). Unless this Agreement shall have been terminated pursuant to Section 8.1 hereof, Purchaser agrees that it shall not, without the consent of the Company, terminate or withdraw the Offer Condition, and or (iiiexcept as provided in this Section 1.1(d)) make any other changes to extend the terms and conditions expiration date of the Offer; provided, however, without the prior written consent of the Companythat, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant subject to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Electionimmediately following sentence,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (At&t Corp)
The Offer. (a) Provided that (i) Provided that this Agreement shall has not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b)VIII hereto, (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable Merger Sub shallPurchaser will, and Parent shall will cause Merger Sub Purchaser to, promptly (but in no event later than the tenth (10th) Business Day after (but not including) the date of this Agreement) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the OfferOffer to purchase all Shares at the Offer Price; provided, however, Merger Sub that Purchaser shall not be required to commence the Offer (and the ten (10) Business Day period referred to above shall be accordingly extended) if (i) the Company shall not: (A) not have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) Documents or the Company shall not have given reviewed and provided comments to Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to Offer Documents on a timely basis, or (ii) the filing thereof Company is not prepared to, concurrently with such commencement, file with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, Shares the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning obligations of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to Purchaser (and not in limitation ofof Parent to cause Purchaser) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules payment and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly Shares tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior will be subject only to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number satisfaction or waiver of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other those conditions set forth in Annex ANNEX I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to ). The initial expiration date of the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall Offer will be the number of Shares equal to twentieth (20th) Business Day following (and including the sum day of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless commencement of the conversion Offer. Purchaser expressly reserves the right (but will not be obligated) at any time or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, from time to time in their its sole discretion, include or exclude Shares tendered in the Offer pursuant discretion to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to Condition or modify or amend the terms and conditions of the Offer; provided, howeverexcept that, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): Purchaser will not (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C1) decrease the Offer Price or change the form of the consideration payable in the Offer, (2) decrease the number of Shares sought pursuant to be purchased by Merger Sub in the Offer; , (D3) impose any conditions amend or waive the Minimum Tender Condition (as defined in ANNEX I), (4) add to the Offer conditions set forth on ANNEX I, (5) modify the conditions set forth on ANNEX I in addition a manner adverse to the holders of Shares, (6) extend the expiration date of the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend required or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide 1.1(a)(iii) or (7) make any “subsequent offering period” other change in accordance with Rule 14d-11 the terms or conditions of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) is materially adverse to the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
The Offer. Section 2.1 The Offer (a) ). Provided that (i) this Agreement shall has not have been --------- terminated in accordance with ARTICLE 10 pursuant to Article X hereof and (ii) all that none of the conditions events set forth in clauses Exhibit A hereto (b)the "Offer Conditions") shall have occurred and be continuing, ---------------- as soon as is reasonably practicable (c) and (g) of Annex I shall then be satisfied (in but no later than the case of clause (b), with respect to covenants and obligations that tenth business day after the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) public announcement by Parent and Merger Subthe Company of the execution and delivery of this Agreement (counting the business day on which such announcement is made)), as promptly as reasonably practicable Merger Sub shall, and Parent Purchaser 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" or "1934 Act")), ------------ -------- an offer (the "Offer") to purchase all outstanding Shares at a price of $0.46 ----- per share, net to the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation seller of the Offer Documents; Shares in cash (B) have given Parent and its legal counsel reasonable opportunity as paid pursuant to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9"Offer Consideration"). The date on which Merger Sub commences obligation of Parent and Purchaser to ------------------- commence the Offer, within to consummate the meaning of Rule 14d-2 under Offer and to accept for payment and pay for Shares validly tendered in the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and not withdrawn shall be subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger SubExhibit A hereto. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub Purchaser expressly reserve reserves the right, in their its sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, such condition and (iii) make any other changes to in the terms and conditions of the Offer; provided, howeverprovided that, without unless -------- previously approved by the prior written consent of the CompanyCompany in writing, Parent and Merger Sub Purchaser shall not, except pursuant to Section 6.02(b): (A) amend, modify or not waive the Minimum Condition and no change may be made which changes the Minimum Condition or decreases the Termination Condition; (B) change Offer Consideration, changes the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease payable in the Offer Price or (other than by adding consideration), reduces the maximum number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any , or amends the terms or the conditions of the Offer in a manner which is adverse to the holders of the Shares, or which imposes conditions or terms to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generallythose set forth herein.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (Atpos Com Inc)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Section 8.1, and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect subject to covenants and obligations that the Company is having provided the information required to comply with or be provided pursuant to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubSection 1.2(b), as promptly as reasonably practicable after the Agreement Date, and in any event on or before February 14, 2023 (the date of such commencement, the “Offer Commencement Date”), Merger Sub shall, shall (and Parent shall cause Merger Sub to, ) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; providedOffer to purchase all of the Shares at a price per share equal to the Offer Price. The Parties hereby acknowledge and agree that the Offer shall constitute an “offer” as defined in NRS 92A.133(4)(e).
(b) The obligation of Merger Sub to, howeverand of Parent to cause Merger Sub to, accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Merger Sub or Parent, of (x) the condition that at least that number of Shares validly tendered and not validly withdrawn prior to the Expiration Time of the Offer and received by the depositary for the Offer (determined in accordance with NRS 92A.133(g)), when added to any Shares already owned by M▇▇▇▇▇ Sub, if any, equals a majority of the voting power of the then issued and outstanding Shares (the “Minimum Condition”), and (y) the other conditions set forth in Annex A (the conditions described in clauses (x) and (y) are collectively referred to as the “Offer Conditions”). Subject to the satisfaction, or waiver by Merger Sub or Parent, of the Offer Conditions, Merger Sub shall not be required to commence (and Parent shall cause Merger Sub to) consummate the Offer if in accordance with its terms and accept for payment (the Company shall not: (Atime of such acceptance for payment, the “Acceptance Time”) have provided and pay for all Shares validly tendered and not validly withdrawn pursuant to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; as promptly as practicable (Band in any event within one (1) have given Parent Business Day) after the Expiration Time and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof in any event in compliance with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (CRule 14e-1(c) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act. The Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid to the seller of such Share in cash, without interest, subject to the deduction or withholding of any Taxes as contemplated by this Agreement, on the terms and subject to the conditions set forth in this Agreement. The time scheduled for payment for Shares accepted for payment pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Commencement Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.”
(bc) In the Offer, each Share accepted The Offer shall be made by Merger Sub in accordance with means of an offer to purchase that describes the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), . Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, right to waive (in their sole discretionwhole or in part) any Offer Condition at any time and from time to time, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) Price or to make any other changes to in the terms and conditions of the Offer; provided, however, that without the prior written consent of the Company, Parent and Merger Sub shall notnot (i) decrease the Offer Price, except pursuant (ii) change the form of consideration payable in the Offer, (iii) reduce the number of Shares to Section 6.02(b): be purchased in the Offer, (Aiv) amend or modify any of the Offer Conditions in a manner that is adverse to the holders of Shares or impose conditions to the Offer in addition to the Offer Conditions, (v) amend, modify or waive the Minimum Condition or the Termination Condition; (Bvi) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” Time in a manner other than pursuant to and in accordance with this Agreement.
(d) Unless extended as provided in this Agreement, the Offer shall initially be scheduled to expire at midnight, New York City time, at the end of the day on the date that is twenty (20) Business Days (calculated as set forth in Rule 14d-11 of 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act; or (H) otherwise amend after the Offer Commencement Date (the “Initial Expiration Time”, and as such date and time may be extended, the “Expiration Time”). Notwithstanding anything to the contrary set forth in this Agreement but subject to the Parties’ respective rights to terminate this Agreement in accordance with Article VIII:
(i) Merger Sub shall extend the Offer for any minimum period required by any rule or, regulation of the SEC or waive its staff, any rule or modify regulation of Nasdaq (including in order to comply with Rule 14e-1(b) promulgated under the Exchange Act in respect of any change in the per share price) or as may be necessary to resolve any comments of the SEC, or any other applicable Law, in each case, applicable to the Offer, the Schedule 14D-9 or the Offer Documents;
(ii) in the event that any of the conditions to the Offer set forth on Annex A, other than the Minimum Condition and those that by their nature are to be satisfied only at the Expiration Time, are not satisfied or waived (to the extent permitted hereunder) as of any then-scheduled Expiration Time, Merger Sub may, and if requested by the Company shall (and Parent shall cause Merger Sub to), extend the Offer for one or more successive extension periods of up to ten (10) Business Days each (or any longer period as the Parties hereto may agree) in order to permit the satisfaction of all of the conditions to the Offer; and
(iii) in the event that all of the conditions to the Offer set forth on Annex A have been satisfied or waived (if permitted hereunder), except that the Minimum Condition has not been satisfied, as of any then-scheduled Expiration Time, Merger Sub may (and, if requested by the Company, shall, and Parent shall cause Merger Sub to) extend the Offer for one or more successive extensions of ten (10) Business Days each (or any longer period as may be approved in advance by the Company), it being understood and agreed that M▇▇▇▇▇ Sub shall not be required to extend the Offer pursuant to this clause (iii) on more than three (3) occasions, but may, in its sole discretion, elect to do so; and
(x) For clarity, none of clauses (i), (ii) and (iii) of this Section 1.1(d) shall be deemed to impair, limit or otherwise restrict in any manner that adversely affects the right of any Party to terminate this Agreement pursuant to and in accordance with the terms of Article VIII, and (other than y) notwithstanding herein to the contrary, in an immaterial respectno event shall Merger Sub be required or, without the prior written consent of the Company, be permitted to extend the Offer beyond the earlier of (1) the holders Termination Date and (2) the valid termination of Shares generallythis Agreement in accordance with Section 8.1.
(e) Subject Merger Sub shall not terminate the Offer prior to Sections 2.01(f)any scheduled Expiration Time without the prior written consent of the Company, (g) and (i)except in connection with a valid termination of this Agreement permitted in accordance with the terms of Section 8.1. In the event that this Agreement is validly terminated pursuant to Section 8.1, each holder of Shares shall be entitled to elect for whether or not the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by ParentExpiration Time has occurred, Merger Sub shall (and the Company for that purpose Parent shall cause Merger Sub to) promptly (a “Form and in any event within twenty-four hours of Election”such termination), included as part of the letter of election irrevocably and transmittal accompanying unconditionally terminate the Offer. Holders of record who hold , not acquire any Shares as nomineespursuant thereto, trustees or and cause any depositary acting on its behalf to promptly return in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For accordance with applicable Law all tendered Shares to the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Sharesregistered holders thereof.
(f) Notwithstanding anything herein to On the contrary:
Offer Commencement Date, Merger Sub and Parent shall (i) If file or cause to be filed with the total number of Cash Elections would require aggregate cash payments in excess of the Cash AvailableSEC, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) that will contain or incorporate by reference the related offer to purchase the Shares pursuant to the Offer, the form of the related letter of transmittal, the summary advertisement and other ancillary Offer documents pursuant to which the Offer will be made and instruments pursuant to which the Offer will be made (collectively, and together with all exhibits, amendments and supplements thereto, the “Offer Documents”); and (ii) cause the Schedule TO and related Offer Documents to be disseminated to holders of Shares in accordance with applicable federal securities Laws. The Company shall promptly furnish to Merger Sub and Parent in writing all information concerning the Company and its stockholders that may be required by applicable Law to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 2.01(f1.1(f). Except with respect to any amendments filed in connection with a Change of Recommendation, the Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents (including any amendment or supplement thereto) prior to the filing thereof with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its legal counsel. Each of Merger Sub, Parent and the Company agrees to promptly correct any information provided by it for use in the Offer Documents if, and to the extent that such Party becomes aware that, such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Merger Sub and Parent further agree to take all steps necessary to cause the Offer Documents as so corrected (if applicable) to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Laws. Upon receipt of any written or oral comments by M▇▇▇▇▇ Sub, Parent or their counsel from any Governmental Authority or its staff with respect to the Offer Documents, or any request from any Governmental Authority or its staff for amendments or supplements to the Offer Documents, Merger Sub and Parent agree to (i) promptly provide the Company and its counsel with a copy of any such written comments or requests (or a description of any such oral comments or requests); (ii) provide the Company and its counsel a reasonable opportunity to comment on any proposed response thereto, and to give reasonable and good faith consideration to any such comments made by the Company or its legal counsel; (iii) provide the Company and its counsel an opportunity to participate with Merger Sub, Parent or their counsel in any materials discussions or meetings with any Governmental Authority or its staff regarding the Offer Documents; and (iv) provide the Company with copies of any written comments or responses submitted by Merger Sub and Parent in response thereto.
(g) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, merger, issuer tender offer, exchange of shares or other like change with respect to Company Common Stock occurring on or after the Agreement Date and prior to Merger Sub’s acceptance for payment of, and payment for, Company Common Stock tendered in the Offer, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action and shall as so adjusted from and after the date of such event, be the Offer Price; provided, however, that nothing in this Section 1.1(g) shall be converted into construed to permit the right Company to receive take any action with respect to the Share Consideration. Company Common Stock that is prohibited by the terms of this Agreement.
(h) All prorations resulting from this Section 2.01(ffees, costs and expenses (except for the fees, costs and expenses of each Party’s respective advisors) in connection with commencing or conducting the Offer, including any costs for engaging any solicitation agent, placing any tombstone advertisement, or filing fees or mailing expenses associated with the preparation, filing and mailing of the Offer Documents and the Schedule 14D-9, shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected borne by the total amount of Shares subject to a Cash Election tendered by such holderCompany.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article VIII, then (i) not later than the first Business Day (for purposes of this Agreement, such term having the meaning given in Rule 14d-1 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement, and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubPurchaser shall, as promptly as reasonably practicable Merger Sub shallpracticable, but in no event later than five Business Days after the date of such public announcement, and Parent shall cause Merger Sub Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act) ), the Offer to purchase all of the issued and outstanding Shares at a price per share of $17.00, net to the seller in cash. The Offer shall be made pursuant to the Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing the terms and conditions set forth in this Agreement. The obligation of Purchaser to, and of Parent to cause Purchaser to, commence the Offer; , conduct and consummate the Offer and accept for payment, and pay for, any Shares properly tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Purchaser in its sole discretion, provided, however, Merger Sub that Purchaser shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (waive the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the Company). Purchaser expressly reserves the right, Parent and Merger Sub shall notsubject to compliance with the Exchange Act, to modify the terms of the Offer, except pursuant that, without the express written consent of the Company, neither Parent nor Purchaser shall (i) reduce the number of Shares subject to Section 6.02(b): the Offer, (Aii) amendreduce the Offer Price, (iii) add to or modify or waive the Minimum Condition or Offer Conditions, (iv) except as provided in the Termination Condition; next sentence, change the expiration date of the Offer, (Bv) 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 holders of the Shares. Notwithstanding the foregoing, if on any scheduled expiration date of the Offer, which shall initially be delivered 20 Business Days after the commencement date of the Offer, all Offer Conditions have not been satisfied or waived, Purchaser may, without the consent of the Company, and at the request of the Company shall, from time to time, extend the expiration date of the Offer, and Purchaser may, without the consent of the Company, extend the Offer for any period required by Merger Sub any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the SEC staff applicable to the Offer. Subject only to the conditions set forth in Exhibit A, Purchaser shall, and Parent shall cause Purchaser to, as soon as practicable after the expiration of the Offer, accept for payment, and pay for all Shares validly tendered and not withdrawn that Purchaser becomes obligated to accept for payment pursuant to the Offer; .
(Cb) decrease On the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (as supplemented or amended from time to time, the "SCHEDULE 14D-1") and Schedule 13E-3 (as supplemented or amended from time to time, the "SCHEDULE 13E-3") 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, the Schedule 13E-3, and the documents included therein pursuant to which the Offer Price will be made, together with any supplements or amendments thereto, the number "OFFER DOCUMENTS"). Parent and Purchaser agree that the Offer Documents shall comply as to form and content in all material respects with the Exchange Act and the rules and regulations promulgated thereunder, and the Offer Documents, at the time filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of Shares sought a material fact or omit to state any material fact required to be purchased stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Merger Sub Parent or Purchaser with respect to written information supplied by the Company or any of its stockholders (other than the Continuing Stockholder) specifically for inclusion or incorporation by reference in the Offer; (D) impose Offer Documents. Parent, Purchaser and the Company each agrees promptly to correct any conditions written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Purchaser further agree to take all steps necessary to cause the Schedule 14D-1 and Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company, the Special Committee and their respective counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company, and Parent and Purchaser shall consider such comments in good faith. Parent and Purchaser agree to provide the Company, the Special Committee and their respective counsel any comments Parent, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer in addition to Documents promptly after the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 receipt of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generallysuch comments.
(ec) Subject Parent shall provide or cause to Sections 2.01(f)be provided to Purchaser on a timely basis the funds sufficient to accept for payment, and pay for, any and all Shares that Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(gd) and (i), each holder of Shares Purchaser shall be entitled to elect for deduct and withhold from the Shares held by consideration otherwise payable pursuant to the Offer such holder (i) the number of such Shares that such holder desires amounts as may be required to exchange for the right to receive the Cash Consideration (a “Cash Election”), be deducted and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election withheld with respect to all or any part the making of such holder’s Shares.
payment under the Internal Revenue Code of 1986, as amended (f) Notwithstanding anything herein the "CODE"), or under any provision of state, local or foreign tax law; provided, however, that Purchaser shall promptly pay any amounts deducted and withheld hereunder to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments applicable governmental authority, shall promptly file all tax returns and reports required to be filed in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number respect of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factordeductions and withholding, rounded down and shall promptly provide to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders Company proof of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on payment and a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage copy of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holdertax returns and reports.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article VII and (ii) all none of the conditions events set forth in clauses (b), (c) and (g) of Annex I shall then have occurred and be satisfied (in the case of clause (b)continuing, with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subshall cause Purchaser, as promptly as reasonably practicable Merger Sub shallpracticable, and Parent shall cause Merger Sub to, to commence (within the meaning of Rule 14d-2 under the Exchange Act), the Offer at the Offer Price. The obligation of Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject to (i) the Offer; providedsatisfaction or waiver of the conditions set forth in Annex I, howeverand (ii) the satisfaction of the condition set forth in Annex II. The conditions to the Offer set forth in Annex I are for the sole benefit of Parent and Purchaser and may be asserted by Parent and Purchaser regardless of the circumstances giving rise to any such conditions, Merger Sub shall and Parent and Purchaser expressly reserve the right, in their sole discretion, subject to Laws to waive any such condition. The condition to the Offer set forth in Annex II may not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested waived by Parent in connection with the preparation any party hereto. The initial expiration date of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on shall be the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately 21st Business Day following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, Offer (within the meaning of Rule 14d-2 under the Exchange Act). The Offer Price shall be net to each seller of Shares in cash, is referred without interest, subject to in this Agreement as the “Offer Commencement Date.”
(b) In the Offerany applicable withholding taxes, each Share accepted by Merger Sub in accordance with upon the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01Offer.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(db) Parent and Merger Sub Purchaser expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to modify the terms and conditions of the Offer, including, without limitation, to extend the Offer beyond any scheduled expiration date; provided, however, that, without the prior written consent of the Company, Parent and Merger Sub Purchaser shall not, except pursuant to Section 6.02(b): not (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (Ci) decrease the Offer Price or change the number form of Shares sought to be purchased by Merger Sub consideration payable in the Offer; Offer (Dother than by adding consideration), (ii) seek to purchase less than all outstanding Shares, or (iii) impose any material conditions to the Offer in addition to those set forth in Annex I. Upon the terms and subject to the conditions of the Offer Conditions; (E) except as permitted by and this Agreement, terminate Purchaser shall accept for payment and purchase all Shares validly tendered and not withdrawn prior to the expiration of the Offer; .
(Fc) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the conditions set forth in Annex I and Annex II. As soon as reasonably practicable on the date the Offer is commenced, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer that (i) will comply in all material respects with the provisions of all applicable federal securities Laws (except as permitted to the extent formally or tacitly waived by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(lStaff of the SEC), provide any “subsequent offering period” in accordance with Rule 14d-11 (ii) will contain (including as an exhibit) or incorporate by reference the Offer to Purchase, a form of the Exchange related letter of transmittal, and (iii) may contain a summary advertisement (at Parent's sole discretion), which documents, together with any supplements or amendments thereto, are referred to collectively herein as the "Offer Documents." Each of Company, on the one hand, and Parent and Purchaser, on the other hand, agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that the Schedule TO or the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC and the Offer Documents, as so corrected, to be disseminated to holders of Shares, in each case to the extent required by applicable federal securities Laws. Parent and Purchaser shall provide Company and its counsel with a reasonable opportunity to review and comment on the Schedule TO and any Offer Documents before they are filed with the SEC.
(d) Notwithstanding the foregoing: (i) if, on the initial scheduled expiration date of the Offer, the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act to have expired or been terminated, the Purchaser shall extend the Offer from time to time until five Business Days after the expiration or termination of the waiting period under the HSR Act; or (H) otherwise amend provided, however, that Purchaser shall not be required to extend the Offer or waive or modify any Offer Condition in any manner beyond the date that adversely affects (other than in an immaterial respect) is twenty days after the holders initial scheduled expiration date of Shares generallythe Offer.
(e) Subject Notwithstanding the foregoing, Parent and Purchaser may, in their sole discretion, elect to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect provide for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”)subsequent offering period pursuant to, and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by terms required by, Rule 14d-11 under the total amount of Shares subject to a Cash Election tendered by such holderExchange Act.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (Subject to the extent applicable) by Parent and Merger Subprovisions of this Agreement, as promptly as reasonably practicable Merger within five business days after the first public announcement of this Agreement, Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offercommence, 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"), is referred 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 conditions set forth in Exhibit A (the "Offer Conditions"). The Offer shall initially expire twenty (20) business days after the date of its commencement, unless this Agreement as is terminated in accordance with Article VIII, in which case the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub whether or not previously extended in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”hereof) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Subexpire on such date of termination. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without Without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): not (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (Di) impose any conditions to the Offer in addition to the Offer Conditions; , (Eii) modify or amend the Offer Conditions or any other term of the Offer in a 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 permitted provided in the following sentence, extend the Offer, if all of the Offer Conditions are satisfied or waived, or (vii) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, 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 payment and pay for shares of Common Stock shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; (ii) for any period required by this Agreementany rule, terminate regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or its staff applicable to the Offer; or (Fiii) except if all Offer Conditions are satisfied or waived but the number of shares of Common Stock tendered is less than 90% of the then outstanding number of shares of Common Stock, for an aggregate period of not more than 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 permitted by this AgreementAgreement is in effect and the Offer Conditions have not been satisfied or waived, extend or otherwise change Sub shall, and Parent shall cause Sub to, cause the Expiration Date; Offer not to expire. Subject to the terms and conditions of the Offer (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” but subject to the right of termination in accordance with Rule 14d-11 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 as soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, 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 requirements of the Exchange Act; , and, on the date filed with the SEC and on the date first published, sent or (H) otherwise amend given to the Company's stockholders, the Offer Documents shall not contain any untrue statement of a material fact or waive omit to state any material fact required to be stated therein or modify any necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Sub with respect to information supplied by the Company in writing for inclusion in the Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders Documents. Each of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that purpose (a “Form such information shall have become false or misleading in any material respect, and each of Election”)Parent and Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of shares of Common Stock, included in each case as part of and to the letter of election extent required by applicable federal securities laws. Parent and transmittal accompanying Sub agree to provide the Offer. Holders of record who hold Shares as nomineesCompany and its counsel in writing with any comments Parent, trustees Sub or in other representative capacities their counsel may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For receive from the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election SEC or its staff with respect to all or any part the Offer Documents promptly upon receipt of such holder’s Sharescomments.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubSection 11.01, as promptly as reasonably practicable after the date hereof, but in no event later than five Business Days following the date of this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub it to, commence (within the meaning of Rule 14d-2 under the Exchange Act▇▇▇▇ ▇▇▇) the Offer; provided, however, Merger Sub shall not be required to commence Offer at the Offer if the Company Price. The Offer shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior be subject to the filing thereof with conditions set forth in Annex II hereto (the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9“Offer Conditions”). The date on which Merger Sub Subsidiary commences the Offer, (within the meaning of Rule 14d-2 under the Exchange Act, ▇▇▇▇ ▇▇▇) the Offer is referred to in this Agreement as the “Offer Commencement Date.”
(b) In Parent and Merger Subsidiary expressly reserve the right to waive any of the Offer Conditions and to make any change in the terms of or conditions to the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive including raising the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverprovided that, without the prior written consent of the Company, neither Parent and nor Merger Sub shall not, except pursuant to Section 6.02(b): Subsidiary shall:
(Ai) amend, modify waive or waive change the Minimum Condition or Condition;
(ii) decrease the Termination Condition; Offer Price;
(Biii) change the form of consideration to be delivered paid in the Offer (other than by Merger Sub pursuant to the Offer; adding consideration);
(Civ) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; ;
(Dv) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreementextend, terminate the Offer; (F) except as permitted by this Agreement, extend accelerate or otherwise change the Expiration Date; (G) expiration date of the Offer except as permitted otherwise provided herein; or
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner that adversely affects the holders of the Shares.
(c) Unless extended as provided in this Agreement, the Offer shall expire on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding the foregoing, but subject to the Parties’ respective termination rights in Section 11.01, (i) Merger Subsidiary shall, and Parent shall cause it to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or Nasdaq applicable to the Offer or for any period otherwise required by Applicable Law and (ii) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Merger Subsidiary shall, and Parent shall cause it to, extend the Offer for one or more periods (each not exceeding ten days in length except as required by Applicable Law) to permit such Offer Condition to be satisfied; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date. The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 2.01(l2.01(c)), but only if this Agreement is validly terminated in accordance with Article 11.
(d) Subject to the terms and conditions set forth in this Agreement and subject to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, promptly after the expiration of the Offer, accept for payment all Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”). The obligation of Merger Subsidiary to accept for payment Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). Promptly after the Acceptance Time, Merger Subsidiary shall pay the Offer Price for such Shares in accordance with the Offer and this Agreement.
(e) Following expiration of the Offer, Merger Subsidiary may in its discretion and shall, if requested by the Company, provide any “a subsequent offering period” period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend 1934 Act if, immediately following the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f)Acceptance Time, (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub Subsidiary and the Company for that purpose (a “Form of Election”), included as part their respective Subsidiaries and Affiliates beneficially own less than 90% of the letter of election Shares outstanding at that time (which Shares beneficially owned shall include Shares tendered in the Offer and transmittal accompanying the Offernot withdrawn). Holders of record who hold Merger Subsidiary shall, and Parent shall cause it to, immediately accept for payment and promptly pay for all Shares as nominees, trustees or they are validly tendered during such Subsequent Offering Period and in other representative capacities may submit multiple Forms any event in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the 1934 Act. The Offer shall terminate immediately upon a termination of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect this Agreement pursuant to all or any part of such holder’s SharesArticle 11.
(f) Notwithstanding anything herein As soon as practicable on the Offer Commencement Date, Parent and Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the contrary:Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement and any schedule or form required to be filed pursuant to the Instructions to Schedule TO (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (ii) cause the Offer Documents to be disseminated to holders of Shares to the extent required by Applicable Law (including the 1934 Act). The Offer shall be conducted in compliance with Applicable Law (including the 1934 Act). The Company shall promptly supply Parent and Merger Subsidiary in writing, for inclusion in the Offer Documents, all information concerning the Company required under the 1934 Act to be included in the Offer Documents.
(g) The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC. Each of Parent and Merger Subsidiary shall respond as promptly as practicable to any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(h) Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect, and each of Parent and Merger Subsidiary further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by Applicable Law (including the 1934 Act).
(i) If the total number of Cash Elections would require aggregate cash payments in excess Parent shall cause to be provided to Merger Subsidiary all of the Cash Available, such Elections shall be subject funds necessary to proration as follows: for each Cash Election, the number of purchase any Shares that shall be converted into the right Merger Subsidiary becomes obligated to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down purchase pursuant to the nearest Share. The “Cash Proration Factor” means a fraction Offer (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject including pursuant to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)any Subsequent Offering Period), multiplied by the Cash Consideration. Each Share subject and shall cause Merger Subsidiary to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with perform all of Merger Subsidiary’s obligations under this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied Agreement on a pro rata timely basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
The Offer. (a) Provided that (i) nothing shall have occurred that would give rise to a right of Parent to terminate this Agreement shall not have been terminated in accordance with ARTICLE 10 pursuant to Section 11.01, and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply shall have complied with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subits obligations under Section 2.02, as promptly as reasonably practicable after the date hereof, but in no event later than thirteen Business Days after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act▇▇▇▇ ▇▇▇) the Offer; provided, however, Merger Sub . The Offer shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior subject to the filing thereof with conditions set forth in Annex I hereto (the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9“Offer Conditions”). The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, Offer is referred to in this Agreement as the “Offer Commencement Date”.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with expressly reserves the terms and subject right to the conditions waive any of the Offer shall be exchanged for Conditions and to make any change in the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant conditions to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverprovided that, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): :
(Ai) amend, modify waive or waive change the Minimum Condition or the Termination Condition; Condition (Bin each case, as defined in Annex I);
(ii) decrease the Offer Price;
(iii) change the form of consideration to be delivered by Merger Sub pursuant to paid in the Offer; ;
(Civ) decrease the Offer Price or the number of Shares sought subject to be purchased by Merger Sub in the Offer; ;
(Dv) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) expiration date of the Offer except as otherwise required or expressly permitted by Section 2.01(l)herein;
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner adverse to the holders of the Shares; or
(vii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange 1934 Act; or .
(Hc) otherwise amend Unless extended as provided in this Agreement, the Offer shall expire at 11:59 p.m. (New York City time) on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (the “Initial Expiration Time”). Subject to the rights of Parent and Merger Sub to terminate this Agreement pursuant to Section 11.01, (i) if any of the Offer Conditions is not satisfied or waive waived at the Initial Expiration Time or modify at any other scheduled expiration time of the Offer, Merger Sub shall extend the Offer from time to time until such Offer Condition or Offer Conditions are satisfied or waived; provided that (i) Merger Sub shall not be required to extend the Offer beyond the End Date unless Parent is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Sub shall be required to extend the Offer beyond the End Date if this Agreement is not otherwise terminated pursuant to Section 11.01, (ii) no such individual extension of the Offer shall be for a period of more than ten Business Days or such other period as mutually agreed between the parties, and (iii) Merger Sub may extend the Offer for the minimum period required by any Applicable Law or the rules and regulations of the SEC or the NASDAQ or as may be necessary to resolve any comments of the SEC or its staff applicable to the Offer, the Schedule TO or Offer Documents. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended pursuant to this Section 2.01) unless this Agreement is validly terminated pursuant to Section 11.01. If this Agreement is validly terminated pursuant to Section 11.01, Merger Sub shall promptly (and in any manner that adversely affects event within 24 hours following such termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Merger Sub prior to the acceptance for payment and payment for Shares tendered in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(other than d) Subject to the terms and conditions set forth in an immaterial respectthis Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Sub shall, and Parent shall cause it to, accept for payment and pay for, promptly (within the meaning of Rule 14e-1(c) of the holders ▇▇▇▇ ▇▇▇) after the expiration of the Offer, all Shares generallyvalidly tendered and not validly withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment and paid for under the Offer, the “Acceptance Time”).
(e) Subject to Sections 2.01(f)On the Offer Commencement Date, (g) Parent and (i), each holder of Shares Merger Sub shall be entitled to elect for the Shares held by such holder (i) file with the number SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that shall include the summary term sheet required thereby and, as exhibits, the offer to purchase and a form of such Shares that such holder desires to exchange for letter of transmittal and summary advertisement (collectively, together with any amendments or supplements thereto, the right to receive the Cash Consideration (a “Cash ElectionOffer Documents”), ) and (ii) cause the number Offer Documents to be disseminated to holders of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”)extent required by applicable U.S. federal securities laws and any other Applicable Law. Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that purpose such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Sub shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case to the extent required by applicable U.S. federal securities laws and any other Applicable Law. The Company shall furnish to Parent and Merger Sub the information relating to the Company required by the 1934 Act to be set forth in the Offer Documents. The Company and its counsel shall be given a “Form reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Sub shall provide the Company and its counsel with (A) any written comments or other written communications (and a summary of Election”)all substantive oral comments or communications) that Parent, included as part of Merger Sub or their counsel may receive from time to time from the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees SEC or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election its staff with respect to all the Schedule TO or any part Offer Documents promptly after receipt of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by those comments or other communications and (B) a reasonable opportunity to participate in the Cash Proration Factor, rounded down response of Parent and Merger Sub to the nearest Share. The “Cash Proration Factor” means a fraction those comments and to provide comments on that response (x) the numerator of to which reasonable and good faith consideration shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)given), multiplied including by participating with Parent and Merger Sub or their counsel in any substantive discussions or meetings with the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderSEC.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Article Eight hereof and (ii) all none of the conditions events set forth in clauses (b), (c) and (g) of Annex I shall then have occurred and be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subcontinuing, as promptly as reasonably practicable Merger Sub shallpracticable, and in any event on or prior to April 27, 2009, Parent (i) shall cause Merger Sub to, the Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all of the Offer; provided, however, Merger Sub shall not be required to commence outstanding Company Shares at the Offer if the Company shall not: Price; (Aii) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation shall, upon commencement of the Offer Documents; (B) have given Parent and its legal counsel but after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on the Schedule 14D-9 prior to the filing thereof TO and all other necessary documents with the SEC Securities and reasonable consideration to any such comments provided Exchange Commission (the “SEC”) and make all deliveries, mailings and telephonic notices required by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 14d-3 under the Exchange Act, is referred to in this Agreement as each case in connection with the Offer (the “Offer Commencement Date.Documents”
); and (biii) In shall use its reasonable best efforts to consummate the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules terms and regulations conditions thereof and the terms and conditions of this Agreement. The obligation of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated Purchaser to pay for, or may delay the acceptance accept for payment of or payment for, pay for any validly tendered Company Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any expiration of the other Offer will be subject only to the satisfaction or waiver of the conditions set forth in Annex I hereto (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Tender Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures).
(db) Parent and Merger Sub on behalf of the Purchaser expressly reserve reserves the rightright from time to time, in their sole discretionsubject to Section 1.1(c), to (i) waive any of the Tender Offer Conditions or to increase the Offer Price, (ii) waive any Offer Condition, and (iii) Price or to make any other changes to in the terms and conditions of the Offer; provided, howeverprovided that, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.the
Appears in 1 contract
Sources: Merger Agreement (Infocus Corp)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with On the terms and subject to the conditions of set forth in this TFA, the Offeror shall effect the Offer. The Offeror agrees with the Company that the price payable by the Offeror for the Shares validly tendered in and not properly withdrawn under the Offer (the Tendered Shares) shall be exchanged for the right to receive the Offer PriceUSD 1.70 per Tendered Share, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Pricein cash, without interest (such amount for each such Shareor any other amount per Tendered Share to be paid pursuant to the Offer in accordance with this TFA, the “Cash Offer Consideration”). The Offer Consideration shall be paid net of any applicable withholding Taxes in accordance with Clause 3.5(b).
(b) The value of the Offer Consideration is on the basis that no dividend or other distribution, whether in cash or assets (other than any dividend or other distribution within the scope of Clause 3.1(d)), or (ii) that number of fully paid and non-assessable Parent Common Shares equal by the Company to the Exchange Ratioholders of Ordinary Shares is declared, made or paid between the date of this TFA and the Closing Date. In the event that the Company, without interest (the “Share Consideration,”)prior written consent of the Offeror, in each case subject to proration as set forth in Section 2.01(f) and subject to declares, makes or pays such a dividend or other distribution after the other provisions date of this Section 2.01TFA and with a record date for entitlement to payment thereof on or before the Closing Date, the Offeror may reduce the Offer Consideration accordingly.
(c) Notwithstanding The Offeror expressly reserves the right at any other terms time to, in its sole discretion, waive, in whole or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Datepart, any of the other Offer Conditions and to make any change in the terms of or conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of Offer not inconsistent with this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determinationTFA; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverprovided that, without the prior written consent of the Company, Parent and Merger Sub the Offeror shall not:
(i) decrease the Offer Consideration, except pursuant as otherwise expressly permitted by Clauses 3.1(b) and 3.1(d);
(ii) change the form of the Offer Consideration;
(iii) decrease the number of Ordinary Shares sought under the Offer;
(iv) impose additional conditions to Section 6.02(b): the Offer;
(Av) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form supplement any of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price Conditions or the number terms of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition a manner adverse, or reasonably expected to be adverse, to any Allego Shareholder; or
(vi) terminate the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreementor accelerate, extend or otherwise change the Expiration Date; (G) Time, in each case, except as permitted by Section 2.01(l), provide any “subsequent offering period” provided in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generallyClause 3.4.
(ed) Subject to Sections 2.01(f)In the event that, (g) during the period between the date of this TFA and (i)the Expiration Time, each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such outstanding Ordinary Shares that such holder desires to exchange for the right to receive the Cash Consideration (is changed into a “Cash Election”), and (ii) the different number of such Ordinary Shares that such holder desires to exchange for as a result of a conversion, stock split, including a reverse stock split, stock dividend or distribution, or other similar transaction, then the right to receive the Share Offer Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred equitably adjusted, without duplication, to herein as an “Election,” and reflect such change; provided, that, in any case, nothing in this Clause 3.1(d) shall be made on a form mutually agreed by Parent, Merger Sub and construed to permit the Company for to take any action with respect to its securities that purpose (a “Form is otherwise prohibited by the terms of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holderthis TFA. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect any adjustment pursuant to all this Clause 3.1(d) will not result in any increase or any part of such holder’s Shares.
(f) Notwithstanding anything herein decrease to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Offer Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down payable to the nearest Share. The “Cash Proration Factor” means Allego Shareholders taken as a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderwhole.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Upon the terms and (ii) all of subject to the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subthis Agreement, as promptly as reasonably practicable Merger Sub shall(but in any event no later than fifteen (15) Business Days) after the date of this Agreement, and Parent Purchaser shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject Subject to the conditions satisfaction, or waiver by Purchaser, of the conditions set forth in Exhibit A (the “Offer Conditions”), Purchaser shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (and Parent shall cause Purchaser to) (i) that amount at or as promptly as practicable following the Expiration Time (in any event, no later than the Business Day immediately following the date on which the Expiration Time occurs), accept for payment (the time of cash equal to the Per Share Cash Purchase Price, without interest (such amount acceptance for each such Sharepayment, the “Cash ConsiderationOffer Acceptance Time”), or ) and (ii) that number at or as promptly as practicable following the Expiration Time (and, in any event, within three (3) Business Days following the date on which the Expiration Time occurs), pay the aggregate Offer Price (by delivery of fully paid and non-assessable Parent Common Shares equal funds to the Exchange Ratio, without interest (depositary for the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(fOffer) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered all Company Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior pursuant to the Acceptance Time (Offer and Parent shall provide or cause to be provided to Purchaser the consideration necessary for Purchaser to comply with such obligations to accept for payment and pay for such Company Shares. The Parties agree that the Offer and Purchaser’s obligation to accept for payment and pay for all Company Shares validly tendered and not validly withdrawn pursuant to the Offer in accordance with the foregoing are not, and shall not be, subject to any condition being other than the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(dc) Parent and Merger Sub Purchaser expressly reserve reserves the right, at any time, in their its sole discretion, to (i) increase the Offer Pricewaive, (ii) waive in whole or in part, any Offer Condition, and (iii) make any other changes to Condition or modify the terms and conditions of the Offer; provided, however, that, without the prior written consent of the Company, Parent and Merger Sub Purchaser shall not, except pursuant :
(i) reduce the number of Company Shares subject to Section 6.02(b): the Offer;
(Aii) amendreduce the Offer Price or change the form of consideration payable in the Offer;
(iii) change, modify or waive the Minimum Condition or Tender Condition, the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price , or the number conditions set forth in clause (b) or clause (d) of Shares sought to be purchased by Merger Sub in the Offer; Exhibit A;
(Div) impose any conditions add to the Offer Conditions or make any Offer Condition more difficult to satisfy;
(v) extend the Expiration Time other than in addition to the Offer Conditions; (E) except as permitted by accordance with this Agreement, terminate the Offer; ;
(Fvi) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any a “subsequent offering period” in accordance with (or any extension thereof) within the meaning of Rule 14d-11 of promulgated under the Exchange Act; or or
(Hvii) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects adverse to the Company Stockholders (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees Purchaser or in other representative capacities may submit multiple Forms of Election on behalf any of their respective beneficial holders, but only one (1Affiliates) such Form of Election for each such beneficial holder. For or the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s SharesCompany.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (RPX Corp)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubSection 8, as promptly as reasonably practicable Merger after the date of this Agreement but in no event more than ten Business Days after the date of this Agreement, Sub shall, shall (and Parent shall cause Merger Sub to, ) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject only to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject satisfaction or waiver (to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2extent such waiver is permitted by applicable Law) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (collectively, the “Offer Conditions”) and, for the avoidance of doubt, no other conditions, Sub shall (and Parent shall cause Sub to), at or as promptly as practicable following the Expiration Time, irrevocably accept for purchase (the time of acceptance for purchase, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. Parent shall provide or cause to be provided to Sub, at the Offer Acceptance Time and on a timely basis at all times thereafter, the funds necessary to purchase any shares of Company Common Stock that Sub becomes obligated to purchase pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve reserves the right, in their sole discretion, right to (i) increase the Offer Price, (ii) waive any Offer Condition, Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the OfferOffer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise expressly provided by this Agreement, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): and Parent shall cause Sub not to, (A) amenddecrease the Offer Price, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to payable in the Offer; , (C) decrease the Offer Price or the maximum number of Shares shares of Company Common Stock sought to be purchased by Merger Sub in the Offer; , (D) impose any conditions to the Offer in addition to other than the Offer Conditions; , (E) except as permitted by this Agreementamend, terminate modify or supplement any of the Offer; Offer Conditions (i) in a manner that adversely affects the holders of Company Common Stock or that makes such Offer Condition more difficult to satisfy or (ii) in any other circumstance, without the consent of the Company, not to be unreasonably withheld, delayed or conditioned, (F) amend, modify or waive the Minimum Condition, (G) except as otherwise required or expressly permitted by this AgreementSection 1.1(e), extend or otherwise change the Expiration Date; Time, (GH) except as permitted by Section 2.01(l), provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (I) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to the holders of Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Section 8.
(d) The Offer shall expire at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the date that is 20 Business Days (calculated in accordance with Rule 14d-11 of 14d-1(g)(3) under the Exchange Act; or ) following the commencement (Hwithin the meaning of Rule 14d-2 under the Exchange Act) otherwise amend of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(e), the date and time to which the Offer has been so extended (the Initial Expiration Time, or waive or modify any such later expiration date and time to which the Offer Condition in any manner that adversely affects (other than in an immaterial respect) has been so extended, the holders of Shares generally“Expiration Time”).
(e) Subject to Sections 2.01(f)the parties’ respective rights to terminate this Agreement pursuant to Section 8, (g) Sub shall, and (i)Parent shall cause Sub to, each holder of Shares shall be entitled extend the Offer from time to elect for the Shares held by such holder time as follows:
(i) If, at the number then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Sub shall be required to, and Parent shall be required to cause Sub to, extend the Offer on no more than two occasions in consecutive increments of five Business Days each (each such increment to end at 5:00 p.m., New York City time, on the last Business Day of such Shares increment) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that such holder desires Sub shall not be required to exchange for extend the right Offer to receive a date later than the Cash Consideration (a “Cash Election”), Termination Date unless the breach by Parent or Sub of any of their representations and warranties set forth in this Agreement or their failure to perform any of their obligations under this Agreement has been the principal cause of or resulted in the failure of the Offer Acceptance Time to occur by the Termination Date;
(ii) Sub shall extend the number of such Shares that such holder desires to exchange Offer for the right minimum period required by applicable Law, interpretation or position of the SEC or its staff or the NASDAQ Stock Market LLC (the “NASDAQ”) or its staff; and
(iii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any action in accordance with Section 9.9 to receive enforce specifically the Share Consideration (a “Share Election”). Any Cash Election performance of the terms and provisions of this Agreement by Parent or Share Election Sub, the Expiration Time shall be referred extended (A) for the period during which such action is pending or (B) by such other time period established by the court presiding over such action, as the case may be. Sub shall not, and Parent shall not permit Sub to, extend the Offer in any manner except as required or expressly permitted pursuant to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”this Section 1.1(e), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and at or prior to the contrary:Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action.
(g) In the event that this Agreement is terminated in accordance with Section 8, Sub shall (and Parent shall cause Sub to) as promptly as practicable (and in any event within 24 hours of such termination) irrevocably and unconditionally terminate the Offer, and shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Parent or Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
(h) As promptly as practicable on the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all exhibits, amendments and supplements thereto, the “Schedule TO”) that will contain or incorporate by reference the Offer to Purchase and form of the related letter of transmittal (the Schedule TO, together with all documents included therein pursuant to which the Offer will be made, the “Offer Documents”) and (ii) cause the Offer Documents to be disseminated to holders of shares of Company Common Stock. Each of Parent, Sub and the Company agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent further agrees to use all reasonable efforts to promptly cause the Offer Documents as so corrected to be filed with the SEC and to promptly be disseminated to holders of shares of Company Common Stock, in each case as and to the extent required by applicable Law. The Company shall promptly furnish or otherwise make available to Parent, Sub or Parent’s legal counsel any information concerning the Company and the Company’s subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Sub agree to provide the Company and its counsel with any comments (including a summary of any oral comments) that Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Each of Parent and Sub shall give the Company and its counsel a reasonable opportunity to participate in the response to any comments of the SEC or its staff with respect to the Offer Documents and shall respond promptly to any such comments.
(i) If Parent, Sub and the total number of Cash Elections would require aggregate cash payments in excess of Exchange Agent with respect to the Cash Available, such Elections Offer shall be subject entitled to proration deduct and withhold from the Offer Price payable pursuant to the Offer such amounts as follows: for each Cash Electionare required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “Code”), or under any provision of state, local or foreign Tax Law. To the extent amounts are so withheld and paid over to the appropriate Governmental Authority, the number of Shares that withheld amounts shall be converted into the right to receive the Cash Consideration shall be (A) the total number treated for all purposes of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down this Agreement as having been paid to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator person in respect of which shall be the Cash Available such deduction and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that withholding was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holdermade.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Section 10.1 and (ii) all no event shall have occurred and no circumstance shall exist which would result in a failure to satisfy any of the conditions set forth in clauses Annex A hereto (as they may be amended in accordance with this Agreement, the “Offer Conditions”), Merger Sub shall commence, and Parent shall cause Merger Sub to commence (within the meaning of Rule 14d-2 under the Exchange Act), the Offer as promptly as practicable after February 4, 2008. The Offer Price of $10.6506 per share shall be net to each seller of shares of Common Stock in the Offer in cash, subject to reduction for applicable amounts withheld pursuant to Section 2.1(f) below and reduction as contemplated by Section 8.2 below. The Company agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. The obligation of Merger Sub to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer shall be subject only to the Offer Conditions. A share of Common Stock which has been properly withdrawn shall not be considered validly tendered pursuant to the Offer, but may be re-tendered upon the terms and subject to the conditions of the Offer.
(b) Parent, on behalf of Merger Sub, expressly reserves the right, in its sole discretion, to waive, amend or modify any of the terms and conditions of the Offer (including, without limitation, the Offer Conditions) in a manner not inconsistent with this Agreement, provided, that, without the prior written consent of the Company, Parent shall not, and shall cause Merger Sub not to, (i) decrease the Offer Price (except as permitted by this Agreement), (ii) change the form of consideration payable in the Offer (other than by adding consideration), (iii) decrease or limit the number of shares of Common Stock sought to be purchased in the Offer, (iv) amend or waive satisfaction of the Minimum Condition; (v) amend any term or condition of the Offer in any manner materially adverse to the holders of shares of Common Stock, or (vi) extend the expiration of the Offer except as provided in Section 2.1(d). Merger Sub shall not, nor shall Parent cause or permit Merger Sub to, revoke, abandon or terminate the Offer except pursuant to Section 10.1 or impose additional conditions or requirements in addition to the Offer Conditions.
(c) On the date of commencement of the Offer, Parent and Merger Sub shall (i) file or cause to be filed with the SEC a combined Schedule 13E-3 and Tender Offer Statement on Schedule TO filed under cover of Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) and related offer to purchase, letter of transmittal and summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and including any supplements or amendments thereto, the “Offer Documents”) and (gii) cause the Offer Documents to be disseminated to the holders of Annex I shall then be satisfied (shares of Common Stock as and to the extent required by applicable U.S. federal securities laws. The Company agrees to promptly furnish to Parent and Merger Sub in writing, for inclusion in the Offer Documents, all information concerning the Company required by applicable law to be included in the Offer Documents or that may be reasonably requested by Parent or Merger Sub in connection with the preparation of the Offer Documents. Parent, Merger Sub and the Company each agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable law and Merger Sub shall, and Parent further agrees to cause Merger Sub to, take all steps necessary to cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of shares of Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents, and any amendments thereto, prior to the filing thereof with the SEC or dissemination thereof to the holders of clause (b), shares of Common Stock. Parent and Merger Sub shall provide the Company and its counsel with a copy of any written comments with respect to covenants the Offer Documents from the SEC or its staff, and obligations that shall consult with the Company is required regarding any telephonic notification of any oral comments with respect to comply the Offer Documents from the SEC or its staff, and shall consult with or to perform prior to such time) or waived (the Company and its counsel to the extent applicablereasonably practicable under the circumstances before responding to any written comments with respect to the Offer Documents from the SEC or its staff, in each case promptly after the receipt thereof. In the event that Parent or Merger Sub receives any comments from the SEC or its staff with respect to the Offer Documents, each shall (i) respond promptly to such comments and (ii) take all other commercially reasonable actions necessary to resolve the issues raised therein.
(d) The Offer shall remain open until that date that is twenty (20) Business Days following (and including the day of) the commencement of the Offer or such later date to which the Offer may be extended in accordance with this paragraph (d) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub may, without the consent of the Company, (i) extend and re-extend the Offer on one or more occasions for one (1) or more periods of not more than ten (10) Business Days each, so long as the last such extension does not cause the Acceptance Date (hereinafter defined) to occur after April 30, 2008, if at the then-scheduled Expiration Date any of the Offer Conditions shall not be satisfied or waived; (ii) extend and re-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) extend and re-extend the Offer on one or more occasions for an aggregate period of not more than twenty (20) Business Days so long as the last such extension does not cause the Acceptance Date to occur after April 30, 2008, if the Minimum Condition has been satisfied but less than that number of shares of Common Stock have been validly tendered that, when added to the number of shares of Common Stock beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by Parent or any of its Affiliates or Subsidiaries, represents less than 90% of the outstanding shares of Common Stock (on a fully diluted basis). Merger Sub (or Parent on its behalf) may, in its sole discretion, elect to provide a subsequent offering period for the Offer pursuant to, and on the terms required by, Rule 14d-11 promulgated under the Exchange Act. Nothing contained in this Section 2.1(d) shall be construed to affect any termination rights set forth in Article X hereof.
(e) Subject to the terms of the Offer and this Agreement and the satisfaction or waiver by Parent, on behalf of Merger Sub, as promptly as reasonably practicable of the Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, commence accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer promptly after the Expiration Date (within the meaning time and date of Rule 14d-2 under such acceptance for payment, the Exchange Act) the Offer; provided, however, “Acceptance Date”). Parent shall provide or cause to be provided to Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis the funds necessary to purchase any and all information reasonably requested by Parent in connection with the preparation shares of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Common Stock that Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be becomes obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (A) amend, modify or waive the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub purchase pursuant to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the contrary:
(i) If Offer to any holder of shares of Common Stock such amounts as Merger Sub reasonably determines that it is required to deduct and withhold with respect to the total number making of Cash Elections would require aggregate cash payments in excess such payment under the Code, and the rules and regulations promulgated thereunder, or under any other applicable Tax law. To the extent that amounts are so withheld by Merger Sub, and paid over to the applicable Governmental Authority, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number shares of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator Common Stock in respect of which shall be the Cash Available such deduction and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that withholding was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holdermade.
Appears in 1 contract
The Offer. (a) Provided that (i) Provided that this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger SubSection 8.01, as promptly as reasonably practicable but in no event later than ten Business Days after the date of this Agreement, Merger Sub shall, and Parent and HoldCo shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 promulgated by the SEC under the Exchange Act) the Offer at the Offer Price. The obligations of Merger Sub to, and of Parent and HoldCo 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 (each, an “Offer Condition”, and together, the “Offer Conditions“). 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 prior written consent of the Company, Merger Sub shall not (A) reduce the number of Shares subject to the Offer, (B) reduce the Offer Price, (C) waive or amend the Minimum Tender Condition (as defined in Exhibit A), (D) add to the Offer Conditions, (E) modify any Offer Condition in a manner adverse to the holders of Shares, (F) extend the Offer (except as required or permitted by the other provisions of this Section 2.01), (G) change the form of consideration payable in the Offer or (H) otherwise amend the Offer in any manner adverse to the holders of Shares.
(ii) Merger Sub shall (and Parent and HoldCo shall cause Merger Sub to):
(A) 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
(B) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, extend the Offer on one or more occasions in consecutive increments of up to ten Business Days each (or such longer period as the parties hereto may agree), until such time as all Offer Conditions are satisfied; provided, however, that (1) Merger Sub shall not be required to commence extend the Offer if beyond the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with End Date or the preparation termination of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; this Agreement and (C2) be prepared to file with the SEC immediately following commencement if, at any expiration of the Offer, and to disseminate to holders all of Sharesthe Offer Conditions except for the Minimum Tender Condition are satisfied or have been waived, the Schedule 14D-9. The date on which Merger Sub commences shall only be required to extend the Offer for one or more additional periods not to exceed an aggregate of twenty (20) Business Days.
(iii) If the Offer is completed but fewer than ninety percent (90%) of the then total outstanding Shares are accepted for payment pursuant to the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by then Merger Sub may, and at the request of the Company shall, and upon any such request of the Company, Parent and HoldCo shall cause Merger Sub to, make available a “subsequent offering period” in accordance with Exchange Act Rule 14d-11.
(iv) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent and HoldCo shall be exchanged for cause Merger Sub to, promptly after the right to receive the Offer Price, which at the election expiration of the holder meansOffer, accept for each Share (i) that amount of cash equal payment and promptly thereafter pay for, all Shares validly tendered and not withdrawn pursuant to the Per Share Cash Purchase Price, without interest (such amount for each such Share, Offer. Parent and HoldCo shall provide or cause to be provided to Merger Sub on a timely basis the “Cash Consideration”), or (ii) funds necessary to purchase any Shares that number of fully paid and non-assessable Parent Common Shares equal Merger Sub becomes obligated to purchase pursuant to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01Offer.
(cv) Notwithstanding Nothing contained in this Section 2.01(a) shall affect any other terms or provisions of the Offer or this Agreement, and termination rights in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Article 8. Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, terminate or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to withdraw the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, however, without the prior written consent of the CompanyCompany other than as permitted by this Agreement. In the event this Agreement is terminated pursuant to Article 8 prior to any scheduled expiration of the Offer, Parent and HoldCo shall cause Merger Sub to promptly (and in any event within one (1) Business Day of such termination) terminate the Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (A) amend, modify or waive file with the Minimum Condition or the Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant SEC a Tender Offer Statement on Schedule TO with respect to the Offer; , which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (C) decrease such Schedule TO and the documents included therein pursuant to which the Offer Price will be made, together with any supplements or amendments thereto, the number of Shares sought to be purchased by Merger Sub in the Offer; (D“Offer Documents“) impose any conditions to and shall disseminate the Offer in addition Documents to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject as and to Sections 2.01(f)the extent required by the Exchange Act. Unless previously withdrawn in accordance with Section 6.03, (g) Parent and (i), each holder of Shares Merger Sub shall be entitled to elect for include the Shares held by such holder (i) Board Recommendation in the number Offer Documents. Each of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by 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 purpose such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by Applicable Law. The Company and its outside legal counsel shall be given reasonable opportunity to review and comment upon the Offer Documents and any amendments thereto prior to filing such documents with the SEC or dissemination of such documents to the holders of Shares, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its outside legal counsel with any written comments (and, in the case of any oral comments, shall provide such comments to the Company and its outside legal counsel orally) Parent, Merger Sub or their outside legal counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, shall consult with the Company and its outside legal counsel (to whose comments reasonable and good faith consideration shall be given) prior to responding to such comments and shall provide to the Company and its outside legal counsel a “Form copy of Election”), included as part any written responses thereto and telephonic notice of any material discussions with the SEC staff.
(c) For purposes of this Agreement (including the exercise of the letter of election Top-Up Option) and transmittal accompanying the Offer. Holders , unless otherwise mutually agreed to by the Company and Merger Sub, any Shares subject to notices of record who hold Shares as nominees, trustees 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 in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s SharesMerger Sub.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (Zoll Medical Corp)
The Offer. (a) Provided that (i) Subject to the terms and conditions of this Agreement (and provided that this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (bArticle VIII), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, as promptly as practicable after the date of this Agreement (but in no event later than October 31, 2022), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the OfferOffer to purchase for cash any (subject to the Minimum Tender Condition) and all Shares at the Offer Price; providedprovided that if, however, Merger Sub shall not be required at the time Purchaser intends to commence the Offer if Offer, the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be is not prepared to file with the SEC immediately following commencement of U.S. Securities and Exchange Commission (the Offer, “SEC”) and to disseminate to holders of Shares, Shares the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange ActPurchaser may, is referred to in this Agreement but until such time as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act)Company is so prepared, shall not be obligated to, commence the Offer. The obligation of Purchaser to accept for payment and to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half pursuant to the Offer shall be subject only to the satisfaction or waiver (1/2to the extent permitted hereunder) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other those conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”). Unless extended in accordance with Section 1.1(a)(ii), the Offer will expire at one (1) shall not have minute after 11:59 p.m. Eastern Time on the twentieth (20th) Business Day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following (and including the day of) the commencement of the Offer (the “Initial Expiration Date”), or, if the Offer has been satisfied extended in accordance with Section 1.1(a)(ii), at the time and date to which the Offer has been so extended (the Initial Expiration Date, or waived (such later time and date to which the extent applicable) by Parent and Merger Sub. For purposes of this AgreementOffer has been extended in accordance with Section 1.1(a)(ii), the “Adjusted Outstanding Share Number” shall be Expiration Date”). Purchaser expressly reserves the number of Shares equal right at any time or from time to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub maytime, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their its sole discretion, to (i) increase waive any Offer Condition or modify or amend the terms of the Offer, in whole or in part, including the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverexcept that, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): Purchaser may not (A) amend, modify decrease the Closing Amount or waive amend the Minimum Condition terms of the CVRs or the Termination Condition; CVR Agreement, (B) change the form of the consideration to be delivered by Merger Sub pursuant to payable in the Offer; , (C) decrease the Offer Price or the maximum number of Shares sought pursuant to be purchased by Merger Sub in the Offer; , (D) impose any conditions to amend or waive the Offer Minimum Tender Condition or the condition set forth in addition to the Offer Conditions; clause 2(e) of Annex I, (E) except as permitted 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, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) extend the Expiration Date of the Offer except as required or expressly permitted by Section 2.01(l), 1.1(a)(ii) or provide any “subsequent offering period” in accordance with (or any extension thereof) within the meaning of Rule 14d-11 of promulgated under the Exchange Act; Act or (H) otherwise amend 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 waive 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 modify 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 one (1) or more periods of time of up to ten (10) Business Days per extension if at any scheduled Expiration Date any Offer Condition in any manner that adversely affects (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 SEC, the staff 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 an immaterial respectconsecutive 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.
(b) On the date of commencement of the Offer, Parent and Purchaser shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO (collectively with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer that includes as exhibits the offer to purchase and related letter of transmittal and summary advertisement and other ancillary documents and instruments pursuant to which the Offer will be made (collectively with any supplements or amendments thereto, 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 ▇▇▇▇▇▇ 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 requirements of applicable Law and, on the date first filed with the SEC and on the date first published, sent or given to the holders of shares of Company Common Stock, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Purchaser with respect to information supplied by or on behalf of the Company specifically for inclusion or incorporation by reference in the Offer Documents. Each of 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 has become aware that such information has become false or misleading in any material respect. Parent and Purchaser shall take all steps necessary to cause the Offer Documents as so corrected to be promptly filed with the SEC and disseminated to holders of Shares, in each case, as and to the extent required by applicable federal securities Laws.
(c) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to purchase any Shares generallythat Purchaser becomes obligated to purchase pursuant to the Offer.
(d) Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 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 not acquire any 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 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) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder The (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), Offer Price and (ii) the number Merger Consideration will be adjusted appropriately to reflect any reclassification, recapitalization, division or subdivision of such Shares that such holder desires to exchange for the right to receive the Share Consideration shares, consolidation of shares, stock split (including a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”reverse stock split), included as part 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 letter date of election this Agreement and transmittal accompanying prior to (A) the Offer. Holders of record who hold payment by Purchaser for Shares as nominees, trustees or validly tendered and not validly withdrawn in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one connection with the Offer (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all the Offer Price) or any part of such holder’s Shares(B) the Effective Time (with respect to the Merger Consideration).
(f) Notwithstanding anything herein Parent shall, and shall cause the Rights Agent to, at or prior to the contrary:
(i) If Acceptance Time, duly authorize, execute and deliver the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holderCVR Agreement.
Appears in 1 contract
Sources: Merger Agreement (Akouos, Inc.)
The Offer. (a) Provided that (i) this Agreement 1.1 Not later than the Latest Mailing Time, Offeror shall not have been terminated in accordance with ARTICLE 10 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, as promptly as reasonably practicable Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, Merger Sub shall not be required to commence mail the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject Support Agreement. Subject to the satisfaction of the conditions of the Offer as contemplated in Section 1.2 below, Offeror shall be exchanged take up and pay for the right to receive Common Shares deposited under the Offer Priceas soon as reasonably practicable and, in any event, not later than three business days following the time at which at the election of the holder means, for each Share (i) that amount of cash equal Offeror becomes entitled to the Per Share Cash Purchase Price, without interest (take up such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery proceduresApplicable Securities Laws.
(d) Parent 1.2 The obligation of Offeror to take up and Merger Sub expressly reserve pay for the rightSubject Common Shares under the Offer shall not be subject to any conditions, save and except for those conditions set out in Schedule A of the Support Agreement. The conditions to the making of the Offer are for the sole benefit of Offeror and may be waived by Offeror in whole or in part in its sole discretion.
1.3 The Seller acknowledges and agrees that Offeror may, in their its sole discretion, to (i) increase the Offer Price, (ii) modify or waive any Offer Condition, and (iii) make any other changes to the terms and conditions term or condition of the Offer; provided, howeverprovided that Offeror shall not, without the prior written consent of the CompanySeller and Goldbelt, Parent and Merger Sub shall notincrease the Minimum Tender Condition, except pursuant impose additional conditions to Section 6.02(b): (A) amendthe Offer, modify or waive any condition of the Minimum Condition or Offer in a manner adverse to the Termination Condition; Shareholders generally (B) which for greater certainty does not include a waiver of a condition), decrease the consideration per Common Share, decrease the number of Common Shares in respect of which the Offer is made, change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease payable under the Offer Price (other than to increase the total consideration per Common Share and/or add additional consideration or the number of Shares sought to be purchased by Merger Sub in the Offer; (Dconsideration alternatives) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend vary the Offer or waive any terms or modify any Offer Condition conditions thereof (which for greater certainty does not include a waiver of a condition) in any a manner that adversely affects (other than in an immaterial respect) which is adverse to the holders of Shares generallySeller.
(e) Subject to Sections 2.01(f), (g) 1.4 Parent and (i), each holder of Shares shall be entitled to elect for Offeror acknowledge and agree that the Shares held by such holder (i) Subscription Closing Date will not occur until after the number of such Shares that such holder desires to exchange for date on which the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s SharesOffer is commenced.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Lock Up Agreement (Wega Mining Asa)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 and (ii) all of Subject to the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Subthis Agreement, as promptly as reasonably practicable Merger after the date of this Agreement, Sub shall, and Parent shall cause Merger Sub to, commence (the Offer within the meaning of Rule the applicable rules and regulations of the Securities and Exchange Commission (the "SEC") to purchase for cash all of the shares of Company Common Stock at a price of $4.00 per share, net to seller in cash (such price, or such higher price as may be paid in the Offer, being referred to herein as the "OFFER PRICE"). The 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 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 Rules 14d-1(g)(3) and 14d-2 promulgated under the Securities Exchange Act) Act of 1934, as amended (the "EXCHANGE ACT")). Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer; provided, howeverexcept that, Merger without the consent of the Company, Sub shall not and Parent shall not permit Sub to (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 required paid pursuant to commence the Offer, (iii) waive or change the Minimum Tender Condition (as defined in Exhibit A), (iv) modify in any manner adverse to the holders of Company Common Stock or add to the conditions set forth in Exhibit A, (v) except as provided in the next sentence, extend the Offer if or (vi) change the Company shall not: form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (A) have provided to extend the Offer for the shortest time periods which are necessary, but in no event more than an additional 60 days, in one or more periods of not more than five business days, if Parent on a timely basis all information reasonably requested by Parent and Sub are not in connection with the preparation material breach of the Agreement and if any of the conditions to the Offer Documents; are not satisfied or waived and such conditions are reasonably capable of being satisfied, (B) have given Parent and its legal counsel reasonable opportunity to review and comment on extend the Schedule 14D-9 prior Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; Offer and (C) if at the scheduled or any extended expiration date of the Offer less than 80% of the Fully Diluted Shares (as defined in Exhibit A) have been validly tendered and not withdrawn in the Offer, extend the Offer for a period of not more than ten business days in the aggregate beyond the latest expiration date that would otherwise be prepared permitted under clause (A) or (B) of this sentence. In addition, Sub may make available a "subsequent offering period" for up to file 20 days in accordance with Rule 14d-11 of the SEC immediately following commencement Exchange Act. In the event that the Minimum Tender Condition has not been satisfied or waived at the scheduled expiration date of the Offer, Sub shall, and Parent shall cause Sub to, extend the expiration date of the Offer in such increments as Sub may determine until the earliest to disseminate occur of (w) the satisfaction or waiver of such condition, (x) Parent reasonably determines that such condition to holders the Offer is not capable of Sharesbeing satisfied on or prior to the Outside Date (as defined in Section 8.01(b)(i)), (y) the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning termination of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with its terms and (z) the Outside Date. On the terms and subject to the conditions of the Offer and this Agreement, Sub shall be exchanged accept for the right payment and pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to receive the Offer Pricethat Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which at shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the election documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Each of Parent, Sub and the holder means, Company shall promptly correct any information provided by it for each Share (i) that amount of cash equal use in the Offer Documents if and to the Per Share Cash Purchase Priceextent that such information shall have become false or misleading in any material respect, without interest (such amount for and each such Share, of Parent and Sub shall take all steps necessary to amend or supplement the “Cash Consideration”), Offer Documents and to cause the Offer Documents as so amended or (ii) that number of fully paid supplemented to be filed with the SEC and non-assessable Parent Common Shares equal to be disseminated to the Exchange Ratio, without interest (the “Share Consideration,”)Company's shareholders, in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions extent required by applicable Federal securities laws. Parent and Sub shall give the Company and its counsel a reasonable opportunity to review and comment on the Offer Documents prior to their being filed with the SEC or disseminated to the shareholders of this Section 2.01the Company. Parent and Sub shall provide the Company and its counsel in writing with any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent or Sub to such comments.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay Upon the acceptance for payment by Sub of or payment for, any validly shares of Company Common Stock tendered Shares pursuant to the Offer (and not theretofore accepted for paymentOffer, Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Sub becomes obligated to purchase pursuant to the Offer. Subject to Section 5.02(b), if (i) immediately prior the Company hereby approves of and consents to the Expiration DateOffer, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition Merger and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived transactions contemplated by this Agreement (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreementcollectively, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures"TRANSACTIONS").
(d) Parent and Merger Sub expressly reserve On the right, in their sole discretion, to (i) increase date the Offer PriceDocuments are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer, including an information statement (ii) waive such Schedule 14D-9, as amended and supplemented from time to time, the "SCHEDULE 14D-9"), describing the recommendations referred to in Section 3.04(b), or any Offer Conditionpermitted withdrawal or modification in accordance with Section 5.02(b), and shall mail the Schedule 14D-9 (iiiincluding the information statement) make any other changes to the terms and conditions holders of the Offer; provided, however, without the prior written consent Company Common Stock. Each of the Company, Parent and Merger Sub shall notpromptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, except pursuant and the Company shall take all steps necessary to Section 6.02(b): (A) amend, modify amend or waive supplement the Minimum Condition Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or the Termination Condition; (B) change the form of consideration supplemented to be delivered by Merger Sub pursuant filed with the SEC and disseminated to the Offer; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub Company's shareholders, in the Offer; (D) impose any conditions each case as and to the Offer extent required by applicable Federal securities laws. The Company shall provide Parent and its counsel in addition writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Offer Conditions; (E) except as permitted by this Agreement, terminate Schedule 14D-9 promptly after the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with Rule 14d-11 receipt of the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generallysuch comments.
(e) In connection with the Offer, the Company shall cause its transfer agent to furnish Sub as promptly as is reasonably practicable with mailing labels containing the names and addresses of the record holders of Company Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of shareholders, security position listings and computer files and all other information as Sub may reasonably request in the Company's possession or control regarding the beneficial owners of Company Common Stock, and shall furnish to Sub such information and assistance (including updated lists of shareholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to the Company's shareholders. Subject to Sections 2.01(f), the requirements of applicable Law (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”as defined in Section 3.05), and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Transactions, Parent and Sub shall hold in confidence pursuant to the Confidentiality Agreement (iias defined in Section 6.02) the number information contained in any such labels, listings and files, shall use such information only for the purpose of communicating the Offer and disseminating any other documents necessary to consummate the Offer, the Merger and the other Transactions and, if this Agreement shall be terminated, shall, upon request, deliver to the Company all copies of such Shares that such holder desires to exchange for information then in their possession or control or the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf control of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all agents or any part of such holder’s Sharesrepresentatives.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
Sources: Merger Agreement (Technisource Inc)
The Offer. (a) Provided that (i) Provided that this Agreement shall has not have been terminated in accordance with ARTICLE 10 pursuant to Section 7.01 and (ii) all of the conditions set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply shall have complied with or to perform prior to such time) or waived (to the extent applicable) by Parent its obligations under this Section 1.01 and Merger SubSection 1.02, as promptly as reasonably practicable Merger after the date hereof (and, in any event, within twenty (20) Business Days after the date of this Agreement), Sub shall, and Parent shall cause Merger Sub to, commence (commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act, the Offer. The obligations of Sub to, and of Parent to cause Sub to, accept for payment, and pay for, any Shares tendered pursuant to the Offer are subject to the conditions set forth in Annex II (the “Offer Conditions”), and not any other conditions. Subject to Section 1.01(a)(ii), the Offer shall initially expire at 12:01a.m. (New York City time) on the date that is twenty-one (21) Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act). Sub expressly reserves the right to waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01.
(c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverthat, without the prior written consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): and Parent shall not permit Sub to, (A) reduce the number of Shares subject to the Offer, (B) reduce the Offer Price, (C) amend, modify or waive the Minimum Tender Condition, (D) add to the Offer Conditions or amend, modify or supplement any Offer Condition or other term of the Termination Condition; Offer in any manner adverse to any holder of Company Common Stock, (BE) except as expressly provided in Section 1.01(a)(ii), terminate, extend or otherwise amend or modify the expiration date of the Offer (or take any other action that would have the effect of extending the expiration date of the Offer), (F) change the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease payable in the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “subsequent offering period” in accordance with within the meaning of Rule 14d-11 of promulgated under the Exchange Act; or (H) otherwise amend the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally.
(e) Subject to Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s Shares.
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
Appears in 1 contract
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ARTICLE 10 Section 7.01 and (ii) all of subject to the conditions of this Agreement set forth in clauses (b), (c) and (g) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (to the extent applicable) by Parent and Merger Sub, Section 6.01 as promptly as reasonably practicable Merger Sub shallpracticable, and Parent but in no event less than ten (10) business days after the public announcement of the execution of this Agreement, Acquirer 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”) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis purchase for cash all information reasonably requested by Parent in connection with the preparation of the Offer Documents; (B) have given Parent issued and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior outstanding Shares at a price of $2.25 per Share, net to the filing thereof with the SEC and reasonable consideration to any seller in cash (such comments provided by Parent price, or its legal counsel; and (C) such other price per Share as may be prepared to file with the SEC immediately following commencement of paid in the Offer, and to disseminate to holders of Shares, the Schedule 14D-9. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is being referred to in this Agreement herein as the “Offer Commencement Date.Price”
(b) In ), 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, each Share accepted by Merger Sub in accordance with on the terms and subject to the conditions prior satisfaction or waiver of the Offer shall be exchanged for the right conditions to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) 6.01, and subject to its rights to extend the other provisions of this Offer under Section 2.011.01(b), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(cb) Notwithstanding 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 other terms or provisions of later date to which the Offer or is extended in accordance with this Agreement, and ) of twenty (20) business days (as defined in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated 14d-1 under the Exchange Act), ) from the date of commencement of the Offer. Acquirer shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to decrease the Offer (and not theretofore accepted for payment), if (i) immediately prior to the Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer Conditions”) shall not have been satisfied Price or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be decrease the number of Shares equal sought in the Offer, amend the conditions to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior Offer set forth in Section 6.01 or impose conditions to the applicable time of determination; plus (B) all Shares that the Company may be required Offer in addition to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, those set forth in their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures.
(d) Parent and Merger Sub expressly reserve the right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any Offer Condition, and (iii) make any other changes to the terms and conditions of the Offer; provided, howeverSection 6.01, without the prior written consent of the Company, Parent and Merger Sub authorized by the Special Committee. Acquirer shall not(which will not require the consent of the Company), except pursuant to Section 6.02(b): (A) amendextend the Offer for the shortest time periods which it reasonably believes are necessary, modify in one or waive 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 Minimum Condition or the Termination Condition; extent permitted by Section 6.03) and (B) change if, on the form of consideration to be delivered by Merger Sub pursuant to the Offer; (C) decrease the Offer Price or Expiration Date, the number of Shares sought validly tendered and not withdrawn pursuant to be purchased the Offer is less than eighty-five percent (85%) of the Shares that are outstanding and not held by Merger Sub in any member of a Filing Group (determined on a fully diluted basis, after giving effect to the Offer; 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 (D10) impose any 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 addition which event the Offer shall be extended to the Offer Conditions; extent required by law in connection with such increase, in each case without the consent of the Company, and (EB) except as permitted by this AgreementAcquirer may, terminate under the terms of the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any “for a subsequent offering period” period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act; or (H) otherwise amend Act following the Offer or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generallyShare Acceptance.
(ec) Subject 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 Sections 2.01(fthe 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, (g) the Offer to Purchase and (irelated 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, each holder 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 Shares 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 entitled made by Acquirer with respect to elect information supplied by the Company for inclusion in the Shares held 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 such holder 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 (iand shall provide any comments thereon as soon as practicable) prior to the number 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 such holder desires to exchange for has filed a Schedule 13D under the right to receive the Cash Consideration Exchange Act (a “Cash ElectionFiling Group”), and ) as to which Acquirer or any of its members is a signatory (ii) the number of such except for 1530 Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be referred to herein as an “Election,” and shall be made on a form mutually agreed owned by Parent, Merger Sub and the Company for that purpose (a “Form of Election”), included as part one member of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to all or any part of such holder’s SharesAcquirer Group).
(f) Notwithstanding anything herein to the contrary:
(i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, such Elections shall be subject to proration as follows: for each Cash Election, the number of Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder.
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Sources: Acquisition Agreement (Home Products International Inc)