The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law. (b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments. (c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Matrix Pharmaceutical Inc/De), Merger Agreement (Matrix Pharmaceutical Inc/De)
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms Offer pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing11 hereof, as promptly as reasonably practicable, but in no event later than six business days practicable after the date of the public announcement of this Agreement Agreement, Merger Sub shall, and Parent Subsidiary shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules 1000 Xxx) the Offer. The Offer and regulations the obligation of Merger Subsidiary to accept for payment and to pay for any Tender Shares shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub toOffer, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant prior to the Offer are subject to the conditions set forth in Exhibit A. The initial scheduled expiration date of the Offer shall (as it may be extended hereunder) and not withdrawn, Tender Shares that, together with the 20th business day following the commencement Tender Shares then directly or indirectly owned by Parent and/or Merger Subsidiary, represent a majority of the OfferVoting Shares (the “Minimum Condition”) and to the other conditions set forth in Annex I hereto. Merger Sub Subsidiary expressly reserves the right to waive any condition of the conditions to the Offer or modify and to make any change in the terms of or conditions to the Offer, except that, without ; provided that unless otherwise provided by this Agreement or previously approved by the prior written consent of the Company, Merger Sub shall not Company in writing (i) reduce the number of shares of Company Common Stock subject to the OfferMinimum Condition may not be waived, (ii) reduce the price per share of Company Common Stock to no change may be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change made that changes the form of consideration payable to be paid, decreases the Offer Price or the number of Tender Shares sought in the Offer or (vi) otherwise amend imposes conditions to the Offer in addition to those set forth in Annex I or amends any terms of the Offer in any manner adverse to the holders of Company Common StockTender Shares and (iii) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (determined using Rule 14d-1(g)(3) of the 1000 Xxx) after the date that the Offer is commenced. Notwithstanding the foregoing, Merger Sub Subsidiary shall extend the Offer (1) from time to time for successive periods of no more than 10 Business Days each (or such longer period as may (but shall not be obligated to), without the consent of consented to by the Company, (A) extend the Offer for one or more periods of time (which, without the written such consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedunreasonably withheld) if, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are the Offer shall not satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived, and (B2) 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 (C) extend the Offer on one or more occasions for an aggregate any period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawnrequired by Applicable Law. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled Following expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub Subsidiary may, with the written consent of the Companyin its sole discretion, elect to provide a one or more subsequent offering period for periods (together, the Offer “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange 1934 Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect Subject to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date foregoing, including the requirements of the OfferRule 14d-11, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On and upon the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub it to, accept for payment and purchase pay for, promptly after the expiration of the Offer, all shares of Company Common Stock Tender Shares (x) validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law(y) validly tendered in the Subsequent Offering Period.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits or incorporated by reference thereto, the Offer to purchase Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made(collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to holders of Tender Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Sub Subsidiary and the Company shall agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of . Parent and Merger Sub shall Subsidiary agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Tender Shares, in each case as and to the extent required by or deemed advisable under applicable Federal U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Merger Sub Subsidiary shall provide to the Company and its counsel in writing with (i) any comments or other communications, whether written comments (and orallyor oral, any oral comments), that Parent, Merger Sub Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of such 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 consult be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the Company and its counsel prior to responding to any such commentsSEC.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Kla Tencor Corp), Merger Agreement (Therma Wave Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable, practicable but in no event later than six business days ten (10) Business Days after the date of that the public announcement of Company executes this Agreement Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Act. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit A. Annex A hereto. The initial expiration date of the Offer shall be the 20th business day Business Day following the commencement of the OfferOffer (determined using Rule 14d-1(g)(3) of the SEC). 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change waive or waive modify the Minimum Tender Condition (as defined in Exhibit Annex A)) to the extent that Merger Sub or Parent would purchase 50% or less of the Fully Diluted Shares or to increase the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit Annex A or modify any condition set forth in Exhibit Annex A in any manner adverse to the holders of Company Common StockStockholders, (ivv) except as provided below in this Section 1.01(a), extend the Offer, or (vvi) change modify the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company, (Ai) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedOffer, if at the scheduled expiration date of the Offer any of the conditions (other than the Minimum Tender Condition) to Merger Sub's ’s obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, including, without limitation, HSR Clearance, (Bii) extend the Offer for a period of not more than ten (10) Business Days beyond the initial expiration date of the Offer, if on the date of such extension less than 90% of the outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (iii) 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 and (Civ) extend the Offer on Offer, one or more occasions time only, for an aggregate any reason for a period of not more than ten business days fifteen (15) Business Days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence. In addition if at the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any otherwise scheduled expiration date of the OfferOffer any condition to the Offer is not satisfied, then Merger Sub shall, and Parent shall from time to time and on each such occurrence cause Merger Sub to, extend the Offer at the request of the Company for a one period of time not more than twenty (which, without the written consent of the Company, shall not exceed ten days per extension20) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this AgreementBusiness Days. In addition, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide may make available a “subsequent offering period for the Offer period,” in accordance with Rule 14d-11 of the Securities Exchange Act SEC, of 1934, as amended not less than ten (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once10) Business Days. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, (A) as soon as practicable after becoming obligated to purchase shares of Company Common Stock pursuant to the Offer, accept for payment and purchase pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to accept the Paying Agent, (B) on the closing date of the Offer (which shall be not more than five (5) Business Days following the Acceptance Date), deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Offer Price for all such accepted shares of Company Common Stock and (C) as soon as practicable following such deposit, cause the Paying Agent to pay for under applicable lawall shares of Company Common Stock so accepted for payment.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, SEC and cause to be disseminated deliver to the Company's stockholders, as Company and to the extent required by applicable Federal securities laws, its counsel a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersCompany Common Stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The To the extent practicable, the Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Merger Sub shall provide to the Company and its counsel in writing as promptly as practicable with copies of any written comments (and orally, any oral comments), correspondence that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents as promptly as practicable after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such those comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Subject to Section 5.1 of this Agreement, if, between the date of this Agreement and the Acceptance Date, the outstanding shares of Company Common Stock shall have been changed into a different number of shares or a different class, solely by reason of any stock dividend, subdivision, reclassification, recapitalization, split, reverse split, combination or exchange of shares or any other similar transaction, the Offer Price shall be correspondingly adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, reverse split, combination or exchange of shares or any other similar transaction and to provide to the Company Common Stockholders the same economic effect as contemplated by this Agreement prior to such action.
Appears in 2 contracts
Samples: Merger Agreement (AMICAS, Inc.), Merger Agreement (Merge Healthcare Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant Section 8.1 and no event shall have occurred and no circumstance shall exist which would result in a failure to Article VI hereof satisfy the condition set forth in clause (ii)(a) of Annex A hereto, Purchaser shall commence the Offer as soon as practicable after the date hereof, and none in any event within eight business days from the date hereof. The obligation of Purchaser to accept for payment and pay for Shares validly tendered and not withdrawn shall be subject only to the satisfaction or waiver by Purchaser of the conditions or events set forth in paragraphs Annex A hereto (athe "Offer Conditions"). Purchaser expressly reserves the right, in its sole discretion, to waive any such condition and make any other changes in the terms and conditions of the Offer; provided that, unless previously approved by the Company in writing, (i) through Purchaser may not waive the Minimum Condition (as defined in Annex A) or any of clauses (ii)(a), (e) or (f) of Exhibit A hereto shall have occurred the Offer Conditions, (ii) Purchaser may not extend the expiration date of the Offer beyond the initial expiration date of the Offer except (A) as required by applicable law, (B) that if any condition to the Offer has not been satisfied or be existingwaived (other than as a result of the failure by Parent or Purchaser to perform any of its obligations under this Agreement), as promptly as reasonably practicablePurchaser may, in its sole discretion, extend the expiration date of the Offer for one or more periods (not in excess of 10 business days each) but in no event later than six business days after the date of Outside Date (as defined below) or (C) as provided hereafter in this Section 1.1(a), (iii) no change may be made which decreases the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth price per Share payable in Exhibit A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) there shall be no change to the form of consideration payable in the Offer or (other than by adding consideration), (v) there shall be no reduction in the maximum number of Shares to be purchased in the Offer and (vi) otherwise amend there shall be no imposition of any condition to the Offer in any manner adverse addition to those set forth herein, there shall be no modification or amendment to the holders of Company Common Stock. Notwithstanding Offer Conditions and the foregoing, Merger Sub may (but Offer shall not be obligated to)otherwise modified or amended, without in each case, in a manner which is adverse to holders of the consent Shares. On the terms and subject to the prior satisfaction or waiver of the Offer Conditions, Parent shall provide funds to Purchaser and Purchaser shall accept for payment and pay for Shares as soon as it is permitted to do so under applicable law; provided that (i) at each scheduled expiration date of the Offer, if any of the Offer Conditions shall not be satisfied or waived, Purchaser shall, at the request of the Company, (A) extend the expiration date of the Offer for one or more periods (not in excess of time 10 business days each) but in no event later than the Outside Date and (which, without the written consent of the Company, ii) Purchaser shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission ("the SEC") or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawnOffer. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled The initial expiration date of the Offer, then Merger Sub Offer shall be 20 business days from time to time and on each such occurrence extend the Offer for a period commencement of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Reh Mergersub Inc), Merger Agreement (Reh Mergersub Inc)
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly soon as reasonably practicable, but in no event later than six five (5) business days after from the date of the public announcement of this Agreement Merger Sub shallhereof, and Parent Newco shall cause Merger Sub to, commence the Offer (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations Rule 14d-2 under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of ) an offer to purchase all outstanding shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect at a price per share of $32.00 net to the Company's San Diego facility has not been consummated on or prior seller in cash, without interest, subject only to any scheduled expiration date all of the conditions set forth herein and in Annex I (together with any amendments or supplements thereto, the "Offer"). The per share amount shall be net to the seller in cash, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On upon the terms and subject to the conditions of the Offer and subject to reduction for any applicable federal, state, local or foreign back-up or other applicable withholding or stock transfer taxes. Subject to the provisions of this AgreementAgreement and the conditions set forth in Annex I, promptly Newco shall keep the Offer open until at least midnight, New York City time, on the date twenty (20) business days from the date of its commencement. As soon as legally permissible after expiration of the Offersuch date and time, Merger Sub shall, and Parent shall cause Merger Sub to, Newco will accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and not withdrawn and pay for under applicable law.
(b) On the date all such shares of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, Company Common Stock as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholderspracticable thereafter, in each case as upon the terms and subject to the conditions of the Offer. The obligations of Newco to accept for payment and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated validly tendered shall be subject only to the conditions set forth in Annex I. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex I.
(b) Newco expressly reserves the right to waive any conditions to the Offer, in whole or in part at any time or from time to time, in its sole discretion (other than the conditions set forth in clauses (i) and (iii)(D) of Annex I), to increase the price per share payable in the Offer, to extend the duration of the Offer, or to make any other changes in the terms and conditions of the Offer; provided, however, that without the prior written consent of Company, Newco shall not (i) decrease the price per share of Company Common Stock being offered pursuant to the Offer., (ii) change the form of consideration to be paid pursuant to the Offer, (iii) decrease the number of shares of Company Common Stock being sought pursuant to the Offer, (iv) amend or modify any of the conditions to the Offer set forth in Annex I, (v) impose any additional conditions to the Offer, (vi) extend the Offer, if all of the Offer conditions are satisfied or waived, or (vii) amend any other term or condition of the Offer. Notwithstanding anything to the contrary contained herein, Newco may, in its sole discretion and without the consent of Company, extend the Offer at any time and from time to time (A) if at the then scheduled expiration date of the Offer any of the conditions set forth in Annex I have not been satisfied, (B) for any period required by applicable law, including, without limitation, any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or its staff applicable to the Offer and (C) if all Offer conditions are satisfied or waived but the number of shares of Company Common Stock tendered is less than 90% of the then outstanding number of shares of Company Common Stock, for an aggregate period of not more than 5 business days (for all such extensions under this clause (C)) beyond the latest expiration date that would be permitted under clause (A) or (B) of this sentence; provided, however, that in the event of any extension pursuant to clause (C), all conditions set forth in Annex I which would have been satisfied if the Offer had been consummated on the date of such extension shall be deemed irrevocably waived by Parent and Newco. So long as this Agreement is in effect and the conditions to the Offer have not been satisfied or waived, at the request of Company, Newco shall extend the Offer for an aggregate period of not more than five business days (for all such extensions) beyond the originally scheduled expiration
Appears in 2 contracts
Samples: Merger Agreement (Prime Service Inc), Merger Agreement (Atlas Copco North America Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs Paragraphs (a) through (f) of Exhibit A Annex I hereto shall have occurred or be existing, no later than two (2) business days after the public announcement of the terms of this Agreement, the Purchaser shall commence the Offer, in accordance with the requirements of Regulations 14D and 14E promulgated under the Exchange Act, and any applicable State securities laws, to purchase all of the issued and outstanding Common Shares for the Offer Price net to the seller thereof in cash, provided, however, that the Purchaser shall use its best efforts to commence the Offer as promptly soon as reasonably practicablepracticable after the public announcement of the terms of this Agreement, but in no event later than six two business days after such public announcement. The Offer shall expire and terminate on the twentieth (20th) business day from the commencement of the Offer (the "Expiration Date"); provided, however, that the Purchaser shall have the right to extend the Expiration Date up to ten (10) additional business days in order to satisfy any of the conditions set forth in Annex I hereto other than the Offer Financing Condition, provided that the failure of such conditions to be satisfied is not due to a breach of this Agreement by Parent or Purchaser. Provided that this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than (2) two business days after the date of the public announcement of the terms of this Agreement Merger Sub shallAgreement, and Parent the Purchaser shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of file with the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to ) the Offer 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, 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 14D-1 (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), which shall contain (as an exhibit) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the holders of Common Shares with respect to the Offer, which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the terms and subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall use its best efforts to file the Tender Offer Statement on Schedule 14D-1 as soon as practicable, but in no event later than two business days after such public announcement. The obligation of Purchaser to accept for payment or pay for any Common Shares tendered pursuant to the Offer will be subject only to the satisfaction of the conditions set forth in Annex I hereto. Without the prior written consent of the Company, the Purchaser shall not decrease the price per Common Share or change the form of consideration payable in the Offer, decrease the number of Common Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive the Minimum Condition (as defined in Annex I), impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Common Shares; provided that the Purchaser expressly reserves the right to waive any condition to the Offer (other than the Minimum Condition) without the consent of the Company. Subject to the terms of the Offer and this Agreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Purchaser will accept for payment and pay for all Common Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such Expiration Date (the time of such purchase being referred to herein as the "Offer Purchase Closing"). Purchaser shall make reasonable provision for the payment of Offer proceeds to be made by wire transfer of immediately available funds to any person tendering Common Shares representing more than 1% of the Company's outstanding Common Shares. Subject to Section 8.01, if any of the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, waived by the Purchaser as of the Expiration Date (or any subsequently scheduled expiration date), Purchaser will extend the Offer from time to time, in each case, for the shortest time period that it reasonably believes is necessary for the consummation of the Offer. Each of Parentthe parties hereto shall use its reasonable best efforts to cause all conditions precedent set forth in Annex I to be fulfilled and avoid the occurrence of any event or to cure any event which may prevent such conditions precedent set forth in Annex I from being fulfilled.
(b) The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, Merger Sub 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 made 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 in writing for inclusion in the Offer Documents. Each of Parent and the Company shall Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and each of Parent and Merger Sub shall the Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to stockholders of the Company's stockholders, in each case case, as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Aei Resources Inc), Merger Agreement (Zeigler Coal Holding Co)
The Offer. (a) Subject to the conditions terms of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six five (5) business days after the date of following the public announcement of the terms of this Agreement Merger Sub shallAgreement, and Parent Buyer shall cause Merger Sub to, commence amend the Offer within to reflect the meaning terms of this Agreement, it being understood that except for the applicable rules foregoing or as otherwise provided herein, the Offer shall be on the same terms and regulations of conditions as the Securities and Exchange Commission (the "SEC")existing Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. Annex I hereto (the "Offer Conditions") (any of which may be waived in whole or in part by Buyer in its sole discretion; provided that, without the consent of the Company, Buyer shall not waive the Minimum Condition (as defined in Annex I)). The initial scheduled expiration date of the Offer shall be no more than twenty (20) business days after the 20th business day following the commencement of the Offerdate hereof. Merger Buyer and Sub expressly reserves reserve 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 Buyer shall not (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockOffer Conditions, (iv) except as provided below in this Section 1.01(a)the next sentence, extend the expiration date of the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company the Common StockShares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)Buyer may, without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedOffer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are Offer Conditions shall not satisfiedbe satisfied or waived, until such time as such conditions are satisfied or waivedwaived (provided that the expiration date may not be extended beyond June 30, 1999 without the consent of the Company), (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or (C) if all Offer Conditions are satisfied or waived but the number of Common Shares tendered together with Common Shares held by Buyer and its Subsidiaries is less than 90% of the then outstanding number of Common Shares (determined on a fully diluted basis for all outstanding Preferred Shares, stock options and any other rights to acquire Common Shares), extend the Offer on one or more occasions for an aggregate period of not more than ten 20 business days if beyond the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled latest expiration date that would be permitted under clause (A) or (B) of the Offer, then Merger Sub shall from time this sentence. Subject to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Buyer and Sub shallshall accept for payment, and Parent shall cause Merger Sub topay for, accept for payment and purchase all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted Buyer becomes obligated to accept for payment, and pay for under applicable law.
(b) On for, pursuant to the date of commencement Offer as soon as practicable after the expiration of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Gryphon Holdings Inc), Merger Agreement (Gryphon Holdings Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant Article IX, and that no event shall have occurred and be continuing that would result the failure to Article VI hereof and none be satisfied of any of the events conditions set forth in paragraphs Annex A, Purchaser shall commence (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer no earlier than September 22, 2010.
(b) The initial expiration date of the Securities Offer shall be midnight (New York City time) on the later of (x) October 20, 2010 and (y) the date that is 20 business days from the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Commission Act) (the "SEC"initial “Expiration Date” and any expiration time and date established pursuant to an extension of the Offer as so extended, also an “Expiration Date”). .
(c) The obligations of Merger Sub to, Purchaser to commence the Offer and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock Public Shares tendered pursuant to the Offer are subject only to (i) the conditions set forth in Exhibit A. The initial expiration date Annex A and (ii) the non-waivable condition that pursuant to the Offer, prior to the Expiration Date, there shall have been validly tendered and not properly withdrawn a number of Public Shares which constitutes at least a majority of the outstanding Public Shares (assuming the exercise of all outstanding Stock Options having an exercise price less than the Offer Price, and excluding from such calculation any Rollover Shares) (the “Minimum Condition”). The conditions to the Offer set forth in Annex A are for the sole benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances (including any action or inaction by Purchaser; provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition. The failure of Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be the 20th business day following the commencement of the Offer. Merger Sub deemed an ongoing right that may be asserted at any time and from time to time.
(d) Purchaser expressly reserves the right (i) to increase the Offer Price and (ii) to waive any condition to the Offer or modify the terms of the Offer, except that the Minimum Condition may not be waived and that, without the prior written consent of the Company, Merger Sub Purchaser shall not (iA) reduce the number of shares of Company Common Stock Public Shares subject to the Offer, (iiB) except as provided in Section 4.4, reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iiiC) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit Annex A or modify any condition set forth in Exhibit Annex A in any manner adverse to the holders of Company Common Stock, Public Shares or (iv) except as provided below in this Section 1.01(a), extend the Offer, (vD) change the form of consideration payable in the Offer or Offer.
(vie) otherwise amend the Offer Purchaser may in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may its discretion (but shall not be obligated to), without the consent of the Company, (Ai) extend the Offer for one or more periods consecutive increments of time (which, without the written consent of the Company, shall not exceed more than ten business days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedeach, if at the any otherwise scheduled expiration date Expiration Date of the Offer any of the conditions to Merger Sub's Purchaser’s obligation to purchase shares of Company Common Stock Public Shares in the Offer are not satisfied, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer Offer, or (Ciii) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for make available a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a “subsequent offering period for the Offer period” in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(f) Purchaser shall comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the generality of the foregoing, Purchaser shall accept for payment, and pay for, all Public Shares validly tendered and not withdrawn pursuant to the Offer promptly following its the acceptance of such Public Shares for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect pursuant to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement. This paragraph shall not be deemed to impair, promptly after expiration limit or otherwise restrict in any manner the right of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn Purchaser to terminate this Agreement pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable lawArticle IX.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Share Exchange Agreement (Res Care Inc /Ky/), Share Exchange Agreement (Res Care Inc /Ky/)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingterminated, Merger Sub shall, as promptly as reasonably practicable, but and in no any event later than six business days within ten (10) calendar days, after the date hereof commence the Offer. Each Share accepted by Merger Sub pursuant to the Offer shall be exchanged for the right to receive from Merger Sub $0.0171 in cash as such amount may be increased pursuant to Annex II hereto (such amount, or any greater amount per Share paid pursuant to the Offer, being hereafter referred to as the "OFFER PRICE"). The initial expiration date of the public announcement Offer shall be 12:00 midnight (New York City time) on the twentieth business day following commencement of the Offer. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer (as it may be extended in accordance with this Section 1.1(a)) and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Sub (if any), represents at least a majority of the total number of outstanding Shares, assuming the full exercise of all then currently exercisable options, rights and convertible securities (if any) with an exercise price less than the Offer Price and the issuance of all Shares that the Company is obligated to issue thereunder (such total number of outstanding Shares being hereafter referred to as the "FULLY DILUTED SHARES") (the "MINIMUM CONDITION") and to the other conditions set forth in Annex I hereto. Parent and Merger Sub expressly reserve the right to waive the conditions to the Offer and to make any change in the terms or conditions of the Offer; PROVIDED, HOWEVER, that without the prior written consent of the Company, no change may be made which decreases the number of Shares sought in the Offer, changes the form or amount of consideration to be paid, imposes conditions to the Offer in addition to those set forth in Annex I hereto, changes or waives the Minimum Condition or any of the other conditions set forth in Annex I hereto, extends the Offer (except as set forth in the following two sentences), or makes any other change to any of the terms and conditions to the Offer which is adverse to the holders of Shares. Subject to the terms of the Offer and this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions to the Offer, Merger Sub shall accept for payment all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer (as it may be extended in accordance with the requirements of this Agreement Section 1.1(a)) and shall pay for all such Shares promptly after acceptance; PROVIDED, HOWEVER, that (x) Merger Sub shallshall extend the Offer for successive extension periods not in excess of ten (10) business days per extension if, at the scheduled expiration date of the Offer or any extension thereof, any of the conditions to the Offer shall not have been satisfied or waived, until such time as such conditions are satisfied or waived, and Parent shall cause (y) Merger Sub to, commence may extend the Offer within if and to the meaning of extent required by the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to; PROVIDED FURTHER, and of Parent to cause Merger Sub toHOWEVER, 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond in the Drop Dead Date event that the condition that is not satisfied is either (as defined x) the Minimum Condition, (y) the condition set forth in Section 6.01(b))paragraph (d) of Annex I hereto, or (z) the condition set forth in paragraph (e) of Annex I hereto. In addition, Merger Sub may, with may extend the written consent Offer after the acceptance of the Company, elect to provide Shares thereunder for a further period of time by means of a subsequent offering period for the Offer in accordance with under Rule 14d-11 of promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, Offer which shall will contain or incorporate by reference all or part of an offer to purchase and a form of the related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively the "OFFER DOCUMENTS") and (ii) cause the Offer Documents")Documents to be disseminated to holders of Shares. Each of Parent, Merger Sub and the Company shall each agree promptly to correct any information provided by it for use in the Offer Documents and add any information that had been omitted therefrom if and to the extent that such information shall have become false or misleading in any material respect, and each of . Parent and Merger Sub shall agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities lawslaws as determined in Parent's reasonable judgment. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing being filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub shall agrees to provide to the Company and its counsel in writing with any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive in writing from the SEC or its staff with respect to the Offer Documents promptly as soon as practicable after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such written comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Offer Agreement (Earthlink Inc), Offer Agreement (Peoplepc Inc)
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable, practicable but in no event later than six five business days after the date of the public announcement by Parent and the Company of this Agreement Merger Agreement, Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer. The obligations obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. The initial expiration date A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the consent of the Offer Company, Sub shall be not waive the 20th business day following the commencement of the OfferMinimum Condition (as defined in Exhibit A)). 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 (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add impose any other conditions to the conditions set forth in Exhibit A Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any condition set forth in Exhibit A in any manner adverse Offer Conditions to the holders of Company Common Stockextent permitted by this Agreement), (iv) except as provided below in this Section 1.01(a)the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend amend, waive or add any other term of the Offer in any manner adverse to the Company or the holders of Company Common StockShares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company, (Ai) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedOffer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are Offer Conditions shall not satisfiedbe satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or and (Ciii) extend the Offer on for any reason for one or more occasions for an aggregate period of not more than ten 10 business days if beyond the Minimum Tender Condition has been satisfied but fewer than 90% latest expiration date that would otherwise be permitted under clause (i) or (ii) of the shares of the Company Common Stock have been validly tendered this sentence. So long as this Agreement is in effect and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are Conditions have not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are been satisfied or waived, provided thatSub shall, so long as and Parent and Merger shall cause Sub shall have complied with their obligations under this Agreementto, Merger Sub shall not be required to extend cause the Offer beyond the Drop Dead Date (as defined in Section 6.01(b))not to expire. Merger Sub may, with the written consent of the Company, elect Subject to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase pay for, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for payment under applicable law, and pay for, 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 Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D- 1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall agree to provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Prior to the expiration of the Offer, Parent shall provide or cause to be provided to Merger Sub on a timely basis the all funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock Shares that Merger Sub becomes obligated is permitted to purchase accept for payment under applicable law and pay for, pursuant to the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aon Corp), Merger Agreement (Alexander & Alexander Services Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 9.01 and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable, practicable but in no event later than six business days ten (10) Business Days after the date of the public announcement of this Agreement Merger Agreement, Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations initial expiration date of Merger the Offer shall be the twentieth (20th) Business Day following commencement of the Offer. The obligation of Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock Offer Securities tendered pursuant to the Offer are shall be subject to the satisfaction of each of the conditions set forth in Exhibit A. The initial expiration date A (any of which may be waived by Sub in its sole discretion, except that the Offer shall Minimum Tender Condition may not be waived) and to the 20th business day following the commencement of the Offerother conditions in this Agreement. 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 CompanyCompany (unless the Company takes any action permitted to be taken pursuant to Section 6.02(b)), Merger Sub shall not (i) reduce the number of shares of Company Common Stock Offer Securities subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to Offer Price, the OfferSeries D Offer Price or the Warrant Offer Price, (iii) change modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockA, (iv) except as provided below in this Section 1.01(a)the next sentence, extend the Offer, Offer or (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger (i) Sub may shall extend the Offer for one ten (but shall 10) Business Day period if the Minimum Tender Condition is not be obligated to)satisfied at the expiration of the initial twenty (20) Business Day Offer period and (ii) thereafter, Sub may, without the consent of the CompanyCompany and in its sole discretion, (A) extend the Offer for one or more successive extension periods (up until the Outside Date) not exceeding twenty (20) Business Days in the case of time any single extension period: (which, without the written consent of the Company, shall not exceed ten days per extensionA) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock Offer Securities are not satisfied, until such time as such conditions are satisfied or waived, ; and (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or the Nasdaq National Market applicable to the Offer or (C) Offer. In addition, Sub may extend the Offer on one or more occasions after acceptance for an aggregate period payment of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer Securities for a further period of time not to exceed twenty (which, without the written consent 20) Business Days by means of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with under Rule 14d-11 of under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept pay for payment and purchase all shares of Company Common Stock Offer Securities validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted becomes obligated to accept purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. Sub may, at any time, transfer or assign to one or more Subsidiary of Parent the right to purchase all or any portion of the Offer Securities tendered pursuant to the Offer, but any such transfer or assignment shall not relieve Sub or Parent of its respective obligations under the Offer or prejudice the rights of tendering securityholders to receive payment for Offer Securities validly tendered and pay accepted for under applicable lawpayment.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"" and to cause such Offer Documents to be disseminated to holders of Offer Securities in accordance with applicable Federal Securities laws). The Offer Documents shall comply in all material respects with the Exchange Act, the Securities Act and the rules and regulations thereunder and other Applicable Law. Each of Parent, Merger Sub and the Company shall agrees to use all reasonable efforts to respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer, and 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 each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Offer Securities, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon on the Offer Documents (including any amendment thereto) prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub shall provide to the Company and its counsel in writing with any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (I Stat Corporation /De/), Merger Agreement (I Stat Corporation /De/)
The Offer. (a) Subject The Offeror shall promptly publicly announce its intention to amend the Original Offer, subject to the terms and conditions set forth below, to increase the consideration payable thereunder to 0.315 of this Agreement a Hudbay Share and provided 0.17 of a Hudbay Warrant for each Augusta Share and extend the expiry time of the Offer to a time not earlier than 5:00 p.m. (Toronto time) on the date that this Agreement shall not have been terminated is 10 business days (as determined in accordance with its terms pursuant Rule 14d-1 under the U.S. Exchange Act) following the filing with the SEC of an amendment to Article VI hereof the Tender Offer Statement incorporating the Notice of Variation and none Extension in respect of the events set forth in paragraphs Offer (a) through (f) of Exhibit A hereto shall have occurred or be existingsuch time, as promptly it may be extended, is referred to herein as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"“Expiry Time”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant conditions to the Original Offer are subject to will be replaced by the conditions set forth out in Exhibit A. The initial expiration date Schedule C. Provided that there has been no termination of this Agreement, the Offeror shall not terminate or withdraw the Offer shall be the 20th business day following the commencement of the Offer. Merger Sub expressly reserves the right to waive any condition prior to the Offer or modify the terms of the Offer, except that, Expiry Time without the prior written consent of the Company, Merger Sub Augusta.
(b) The Offeror shall not prepare (i) reduce the number Notice of Variation and Extension in both the English and French languages, (ii) amendments to the Tender Offer Statement and the Form F-10 and (iii) the Warrant Form F-10, in all material respects in accordance with applicable Securities Laws. The Offeror shall mail the Notice of Variation and Extension in accordance with applicable Securities Laws to each registered holder of Augusta Shares as soon as reasonably practicable and, in any event, not later than 11:59 p.m. (Toronto time) on July 7, 2014 (such time on such date being the “Latest Mailing Time”); provided, however, that if the mailing of the Notice of Variation and Extension is delayed by reason of Augusta not having provided to the Offeror the Directors’ Circular (defined below) as well as any information pertaining to Augusta that is necessary for the completion of the Notice of Variation and Extension by the Offeror, then the Latest Mailing Time shall be extended to 11:59 p.m. on the second business day following the date on which Augusta supplies such necessary documents, information or other assistance.
(c) Prior to the printing of the Notice of Variation and Extension and the filing of the amendment to the Tender Offer Statement, the Offeror shall provide Augusta with a reasonable opportunity to review and comment on such documents, recognizing that whether or not such comments are appropriate will be determined by the Offeror, acting reasonably.
(d) The Offeror agrees to take up all of the Augusta Shares tendered under the Offer no later than 9:00 a.m. on the first business day (determined in accordance with the U.S. Exchange Act) following the first scheduled Expiry Time if and when all the conditions to the Offer set out in Schedule C shall have been satisfied or waived by the Offeror, in its sole discretion, and pay for such shares promptly and in any event not later than three (3) business days following such scheduled Expiry Time
(e) The Offeror may, in its sole discretion, modify or waive any term or condition of Company Common Stock subject the Offer (including any further extension of the Expiry Time); provided that the Offeror shall not, without the prior consent of Augusta, impose additional conditions to the Offer, (ii) reduce decrease the price consideration per share Augusta Share, decrease the number of Company Common Stock to be paid pursuant to Augusta Shares in respect of which the OfferOffer is made, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in under the Offer (other than to increase the total consideration per Augusta Share or add additional consideration) or otherwise vary the Offer or any terms or conditions thereof in a manner which is adverse to the Augusta Shareholders.
(vif) otherwise amend the Offer in If Augusta declares, sets aside or pays any manner adverse dividend or other distribution to the holders of Company Common Stock. Notwithstanding record of Augusta Shares on or prior to the foregoingEffective Time, Merger Sub may (but the Parties shall not be obligated to), without make such adjustments to the consent of the Company, (A) extend consideration payable under the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are as they determine acting in good faith to be necessary to cause provide the conditions Offeror and the holders of Augusta Shares the Offer set forth herein same economic effect as contemplated by this Agreement prior to be satisfied, if at such event.
(g) If the scheduled expiration date of the Offer Offeror takes up any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of Augusta Shares under the Offer, then Merger Sub it shall from time to time make a public announcement of that fact and on each such occurrence the Offeror shall extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar less than 10 days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Support Agreement (HudBay Minerals Inc.), Support Agreement (Augusta Resource CORP)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms Article 8, and that no event shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to Article VI hereof and none any of the events conditions set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAnnex A, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall5:30 p.m. Eastern Daylight Savings time on July 28, and 2009, Parent shall cause Merger Sub toto commence, and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Offer. In the Offer, each Share accepted by Merger Sub in accordance with the terms of the Securities Offer shall be exchanged for the right to receive from Merger Sub the Offer Price. Parent shall cause Merger Sub to accept for payment, and Exchange Commission (Merger Sub shall accept for payment, all Shares which have been validly tendered and not withdrawn pursuant to the "SEC")Offer as soon as practicable following the Expiration Date. The obligations Notwithstanding the above, the obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock for all Shares tendered pursuant to the Offer are shall be subject (x) to the condition that the number of Shares validly tendered and not withdrawn shall be at least the minimum number of Shares required to approve this Agreement, the Merger and the other transactions contemplated herein pursuant to the organizational documents of the Company and the FBCA (the “Minimum Condition”), and (y) to the other conditions set forth in Exhibit Annex A. The initial expiration date conditions to the Offer set forth in Annex A are for the sole benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the Offer circumstances (including any action or inaction by Parent or Merger Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition or may be waived by Parent or Merger Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to the 20th business day following the commencement of the Offersentence. Merger Sub expressly reserves the right to increase the amount of consideration payable in the Offer and to waive any condition to the Offer or modify the terms of the Offer, except the Minimum Condition; provided that, without Merger Sub, at its sole option, may waive such Minimum Condition (i) if the number of Shares validly tendered and not withdrawn shall be at least equal to the difference between (x) the minimum number of Shares required to approve this Agreement, the Merger and the other transactions contemplated herein pursuant to the organizational documents of the Company and the FBCA, less (y) the number of Shares subject to Support Agreements or (ii) with the prior written consent of the Company. The failure of Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. Without the prior written consent of the Company, Merger Sub shall not (i) reduce decrease the number amount of shares of Company Common Stock subject to consideration payable in the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change Offer or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or (vi) otherwise amend reduce the time period during which the Offer shall remain open. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in the Offer.
(b) 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 with respect to the Offer (together with all amendments and supplements thereto, the “Schedule TO”) and related Offer to Purchase, form of letter of transmittal and summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and including any manner adverse supplements or amendments thereto, the “Offer Documents”) and (ii) cause the Offer Documents to be disseminated to the holders of Shares as and to the extent required by applicable Law. The Company Common Stockshall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable securities Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. Notwithstanding The Company hereby consents to the foregoinginclusion in the Offer Documents of all material disclosure relating to (i) the company financial advisor Xxxxx & Company LLC (including the amount of fees and other consideration that Xxxxx & Company LLC will receive upon consummation of or as a result of the Offer and the Merger, and the conditions therefor), (ii) the financial advisor Xxxxxxx & Company (including the amount of fees and other consideration that Xxxxxxx & Company shall receive in connection with the opinion referred to in Section 4.20), (iii) the opinions of each of Xxxxx & Company LLC and Xxxxxxx & Company referred to in Section 4.20 and (iv) the information that formed the basis for rendering each of such opinions, subject to the approval of the form of such disclosure by Xxxxx & Company LLC and Xxxxxxx & Company, respectively, such approval not to be unreasonably withheld or delayed. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Parent and Merger Sub shall 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, as soon as reasonably practicable and as and to the extent required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any written comments or other communications, and shall inform them of any oral comments or other communications, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (but ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall not be obligated togiven).
(c) Subject to the terms and conditions thereof, without the consent Offer shall remain open until at least midnight, New York City time, on the twentieth Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the date the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the CompanyOffer as so extended, also an “Expiration Date”); provided, however, that Merger Sub shall: (Ai) from time to time extend the Offer for one or more periods of time (whichup to 20 Business Days each, without the written consent length of the Company, shall not exceed ten days per extension) that each such period to be determined by Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedin its sole discretion, if at the scheduled expiration date of the Offer Expiration Date any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are the Offer, including the Minimum Condition and the conditions and requirements set forth in Annex A, shall not satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waivedwaived to the extent permitted by this Agreement, and (Bii) 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 (C) Offer. Merger Sub may, from time to time, extend the Offer on one or more occasions for an aggregate a period of not no more than ten business 20 days in the aggregate, if at the Minimum Tender Condition has been satisfied but fewer scheduled Expiration Date less than 9080% of the number of Shares then outstanding less the number of shares of held by persons subject to Support Agreements (the Company Common Stock “Support Agreement Shares”) have been validly tendered and not withdrawn. Parent and Notwithstanding the above, in no event shall Merger Sub agree that if all of the conditions be required to, or shall Parent be required to the Offer are not satisfied on any scheduled expiration date of the Offer, then cause Merger Sub shall from time to time and on each such occurrence to, extend the Offer for a period of time beyond the Outside Date (which, as hereinafter defined). In no event shall Merger Sub extend the Offer beyond the Outside Date without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as . Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, comply with the written consent obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the generality of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offerforegoing, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment payment, and purchase pay for, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On promptly following the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt acceptance of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase Shares for payment pursuant to the Offerterms and subject to the conditions of the Offer and this Agreement. This paragraph shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent or Merger Sub to terminate this Agreement pursuant to Article VIII.
Appears in 2 contracts
Samples: Merger Agreement (Bankrate Inc), Merger Agreement (Bankrate Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI IX hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A hereto (the "Offer Conditions") shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six business days after within five Business Days of the date of the public announcement of this Agreement hereof, Merger Sub shall, and Parent shall cause Merger Sub to, will commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission a tender offer (the "SECOffer"). ) for all of the outstanding shares of common stock, par value $0.001 per share, of the Company (each a "Share" or, collectively, the "Shares") at a price per Share of U.S. $8.50 net to the Seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, including Annex A hereto.
(b) The obligations obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, purchase and pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. The initial expiration date satisfaction or waiver of the Offer shall be Conditions, including the 20th business day following the commencement Offer Condition that at least that number of Shares equivalent to a majority of the Offertotal issued and outstanding Shares on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"). Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except thatwill not, without the prior written consent of the Company, Merger Sub shall not Company (such consent to be authorized by the Company Board)
(i) reduce decrease the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change amount or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought in the Offer, (iii) impose additional conditions to the Offer, (iv) change any Offer Condition or amend any other term of the Offer if any such change or amendment would be adverse in any respect to the holders of Shares (other than Parent or Merger Sub), (v) except as provided below, extend the Offer if all of the Offer Conditions have been satisfied or (vi) otherwise amend or waive the Minimum Condition. Subject to the terms and conditions hereof, the Offer in any manner adverse to shall expire at midnight, New York City time, on the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may date that is twenty (but shall not be obligated to), without the consent of the Company, (A20) extend Business Days after the Offer for one or more periods is commenced (within the meaning of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations Rule 14d-2 under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (the "Scheduled Expiration Date"); provided, following its acceptance for payment however, that without the consent of shares of the Company Common Stock in the Offer. Parent and Board, Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of may (x) extend the Offer, then Merger Sub if on the Scheduled Expiration Date of the Offer any of the Offer Conditions shall not have been satisfied or waived, for one (1) or more periods (none of which shall exceed ten (10) Business Days) but in no event past 90 days from the date of this Agreement unless the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act has not terminated or expired in which case not past the date set forth in Section 9.2(i), (y) extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation such period as may be required by any rule, regulation, interpretation or position of the Securities and Exchange Commission ("SEC") or the staff thereof applicable to so the Offer or (z) extend the Offer for one (1) or more periods (each such period to be for not more than once. On the terms three (3) Business Days and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause such extensions to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.an
Appears in 2 contracts
Samples: Merger Agreement (Merck & Co Inc), Agreement and Plan of Merger (Merck & Co Inc)
The Offer. (a) Subject to The Merger Agreement provides for the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none commencement of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable, but in no event Offer not later than six the fifth business days after the date of day from the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning execution of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Merger Agreement. The obligations of Merger Sub to, and of Parent the Offeror to cause Merger Sub to, accept for payment, payment and to pay for, for any shares of Company Common Stock Shares validly tendered pursuant on or prior to the expiration of the Offer and not withdrawn are subject only to the Minimum Condition and the other conditions set forth in Exhibit A. Section 14--"Certain Conditions to the Offeror's Obligations". The initial expiration date of Merger Agreement provides that the Offeror cannot amend or waive the Minimum Condition or decrease the Offer shall be the 20th business day following the commencement of the Offer. Merger Sub expressly reserves the right to waive any condition to the Offer Price or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares Shares sought, change the form of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock consideration to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add impose conditions to the conditions Offer in addition to those set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse Section 14--"Certain Conditions to the holders Offeror's Obligations," amend any other term or condition of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockShares or extend the expiration date of the Offer without the prior written consent of the Company. Notwithstanding the foregoing, the Offeror shall, and Parent agrees to cause the Offeror to, extend the Offer for a period of ten (10) business days following the initial expiration date of the Offer, if any conditions to the Offer have not been satisfied or waived at such date. In addition, following such first extension of the Offer as provided in the preceding sentence, (i) the Offeror shall, and Parent agrees to cause the Offeror to, extend the Offer, at any time prior to the termination of the Merger Sub Agreement, for one or more periods of not more than ten (10) business days, if at the expiration date of the Offer, as extended, all conditions to the Offer have not been satisfied or waived, and (ii) the Offer Price may (but shall not be obligated to)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 the Company. In addition, the Offeror may, without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time not more than ten (which, without 10) business days beyond the written consent latest expiration date that would otherwise be permitted under clause (i) or (ii) of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions immediately preceding sentence unless at least 90% of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub outstanding Shares shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Offer. Company Actions. Pursuant to the Merger Sub is permitted to accept and pay for under applicable law.
(b) On Agreement, the date of Company has agreed that, as promptly as practicable following the commencement of the Offer, Parent and Merger Sub shall it will file with the SECCommission and mail to its stockholders, and cause to be disseminated to a Solicitation/Recommendation Statement on Schedule 14D-9 containing the recommendation of the Board of Directors that the Company's stockholdersstockholders accept the Offer and approve the Merger, as subject to the fiduciary duties of the Company's directors under applicable law and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders provisions of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such commentsAgreement.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Offer to Purchase (Wolters Kluwer Us Corp), Offer to Purchase (Wolters Kluwer Us Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 8.1 and none of the events set forth in paragraphs (a) through (f) of Exhibit ANNEX A hereto shall have occurred or be existingexisting (unless such event shall have been waived by ACo), PHI shall cause ACo to commence, and ACo shall commence, the Offer at the amount per Share specified in the recitals of this Agreement or such greater amount per share paid pursuant to the Offer (the "PER SHARE AMOUNT") as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six five business days after the date of the public announcement of this Agreement Merger Sub ACo's intention to commence the Offer. The Offer shall expire 20 business days after it is commenced, shall be extended for an aggregate of up to 10 business days from the initial expiration date if requested by TPC and may be extended by ACo for an aggregate of up to 20 business days from the initial expiration date (but not more than 20 business days therefrom) without the written consent of TPC, except that (i) the Offer may be extended without such consent for up to an aggregate of 30 days from the initial expiration date until the expiration or termination of the waiting period, if applicable, under the HSR Act (as defined in Section 3.5(b)) and (ii) ACo may extend the Offer, if, at the time the Offer would otherwise expire, a 5 day cure period under clause (f) or (g) of Annex A is in effect, to a date 5 days after the end of such 5 day cure period. The obligation of ACo to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the condition (the "MINIMUM CONDITION") that at least the number of Shares that, when combined with the Shares already owned by Parent and its wholly owned Subsidiaries, constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights, whether or not vested or exercisable) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver of the other conditions set forth in ANNEX A. ACo expressly reserves the right to change or waive any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that (notwithstanding Section 8.4) no change may be made which (A) decreases the Per Share Amount, (B) reduces the maximum number of Shares to be purchased in the Offer, (C) imposes conditions to the Offer in addition to those set forth in ANNEX A, (D) changes or waives the Minimum Condition, (E) extends the Offer, except as expressly provided above, (F) provides for a different Per Share Amount in respect of Class A Common Stock than in respect of Class B Common Stock, or (G) waives or changes the terms of the Offer in any manner adverse to the holders of Shares (other than PHI and its Subsidiaries). The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, without interest thereon, upon the terms and Parent shall cause Merger Sub to, commence subject to the conditions of the Offer. Subject to the terms and conditions of the Offer within (including, without limitation, the meaning Minimum Condition), ACo shall accept for payment and pay, as promptly as practicable after expiration of the applicable rules Offer, for all Shares validly tendered and regulations not withdrawn.
(b) As soon as reasonably practicable on the date of commencement of the Offer, ACo shall file with the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, ) and of Parent disseminate to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and Shares to the extent required by applicable Federal securities laws, law a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "SCHEDULE 14D-1") with respect to the Offer, which Offer and the other Transactions (as defined below). The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule TO and the documents included therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"). Each of ParentPHI, Merger Sub ACo and the Company shall TPC agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respectmisleading, and each of Parent PHI and Merger Sub shall ACo further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company TPC and its counsel shall be given reasonable an opportunity to review and comment upon on the Offer Documents and any amendments thereto prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent PHI and Merger Sub shall ACo will provide to the Company TPC and its counsel in writing with a copy of any written comments (and orally, or telephonic notification of any oral comments), Parent, Merger Sub comments PHI or their counsel ACo may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments thereof and shall consult with the Company will provide TPC and its counsel prior to responding to with a copy of any such comments.
(c) Parent written responses and telephonic notification of any oral response of PHI, ACo or their counsel. In the event that the Offer is terminated or withdrawn by ACo, PHI and ACo shall provide or cause all tendered Shares 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 returned to the Offerregistered holders of the Shares represented by the certificate or certificates surrendered to the Paying Agent (as defined in Section 2.9).
Appears in 2 contracts
Samples: Merger Agreement (TPC Corp), Merger Agreement (Pacificorp Holdings Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and provided that none of the events set forth in paragraphs clauses (a) through (fa)-(c) of Exhibit Annex A hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, shall (and Parent shall cause Merger Sub to, ) commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) a cash tender offer to purchase all of the Securities issued and Exchange Commission outstanding shares of the Company Common Stock for $7.20 U.S. Dollars per share of Company Common Stock (such amount, or any greater amount per share of Company Common Stock paid pursuant to the "SEC"offer, the “Per Share Amount” and such offer, as it may be amended from time to time pursuant to the terms hereof, the “Offer”) no earlier than fourteen (14) days and no later than twenty (20) days after the date hereof (unless such date is not a business day, in which case the first business day after the date that is fourteen (14) days or twenty (20) days, as applicable, after the date hereof). The obligations of Merger Sub to, and of Parent to shall cause Merger Sub to, to accept for payment, and Merger Sub shall accept for payment, all shares of the Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any event not more than the fourth business day) following the Expiration Date (as defined below).
(b) The obligation of Merger Sub to accept for payment, purchase and pay for, for any shares of Company Common Stock tendered pursuant to the Offer are (and not validly withdrawn) shall only be subject to the satisfaction or waiver pursuant to the terms hereof of (i) the condition (the “Minimum Condition”) that at least that number of shares of Company Common Stock validly tendered and not withdrawn prior to the Expiration Date, when added to any shares of Company Common Stock already owned by Parent or any of its subsidiaries, if any, shall be equal to or greater than fifty and one tenth percent (50.1%) of the sum of the shares of Company Common Stock then outstanding on a fully-diluted basis (including as outstanding only options that are vested as of that date or may vest prior to the Merger Outside Date) and (ii) the other conditions set forth in Exhibit A. The initial expiration date of Annex A hereto (the conditions described in clauses (i) and (ii) are collectively referred to as the “Tender Offer shall be the 20th business day following the commencement of the OfferConditions”). Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition, which may not be amended or waived), to increase the Offer or modify Per Share Amount payable in the Offer, and to make any other changes in the terms and conditions of the Offer, except that, ; provided that without the prior written consent of the CompanyCompany no change may be made that decreases the Per Share Amount (except as provided in Section 1.1(h)), Merger Sub shall not (i) reduce changes the form of consideration payable in the Offer, imposes conditions to the Offer in addition to the Tender Offer Conditions, decreases the number of shares of Company Common Stock subject to the Offer, (ii) reduce reduces the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in time period during which the Offer shall remain open, or (vi) otherwise amend modifies or amends the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may Shareholders.
(but shall not be obligated to), without the consent of the Company, (Ac) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On Upon the terms and subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time, at the end of the later of (i) the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) or (ii) May 13, 2011 (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and this Agreementin accordance with, promptly after expiration the provisions of Section 1.1(d) or as required by Applicable Laws (defined in Section 9.3) or the interpretations of the Securities and Exchange Commission (the “SEC”) (in which event the term “Expiration Date” shall mean the latest time and date as the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersextended, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given 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. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral commentsmay expire), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Coleman Cable, Inc.), Merger Agreement (Technology Research Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI provisions hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto Merger Agreement, Key shall have occurred or be existingcommence, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act"), the Offer to purchase all outstanding Shares with each Share to receive the consideration to be paid pursuant to the terms of the Securities and Exchange Commission (the "SEC")Merger Agreement. The obligations of Merger Sub to, and of Parent obligation to cause Merger Sub to, accept for payment, commence the Offer and pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject to the conditions set forth herein (the "Conditions") and subject to the rights of Key to terminate the Agreement Regarding Tender Offer in Exhibit A. The initial expiration date the event of termination of the Offer shall be the 20th business day following the commencement of the OfferMerger Agreement. Merger Sub Key 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 CompanyAMVC, Merger Sub Key shall not (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant impose any other conditions to the OfferOffer other than the Conditions or modify the Conditions (other than to waive any Conditions to the extent permitted by this Agreement), (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a)the next sentence, extend the Offer, or (viv) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger Sub Key may (but shall not be obligated to), without the consent of the Company, (Ai) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedOffer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are Conditions shall not satisfiedbe satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or Offer, and (Ciii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten 15 business days if beyond the Minimum latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, in each case subject to the right of Key or AMVC to terminate the Agreement Regarding Tender Condition has been satisfied but fewer than 90% of Offer pursuant to the shares of the Company Common Stock have been validly tendered and not withdrawnterms hereof. Parent and Merger Sub agree Key agrees that if all of the conditions to the Offer are not satisfied on at any scheduled expiration date of the Offer, either of the conditions set forth in paragraphs 3(d) and 3(e) below shall not have been satisfied, but at such scheduled expiration date all the other conditions of Section 3 shall then Merger Sub be satisfied, at the request of AMVC (confirmed in writing), Key shall from time to time and on each such occurrence extend the Offer for a reasonable period to permit AMVC the right to cure such failure of time (which, without condition subject to the written consent right of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary Key or AMVC to cause the conditions of terminate the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and the Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect Agreement pursuant to the Company's San Diego facility has not been consummated on or prior terms hereof and thereof. Subject to any scheduled expiration date the terms and conditions of the Offer, then Merger Sub Key shall extend the Offer pay for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub as soon as it is legally permitted to accept do so under applicable law and pay for such Shares promptly. Any obligations of Key under applicable lawthe terms of the Offer will not apply to any transactions subsequent to the purchase of Shares tendered in the Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub Key shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement tender offer statement on Schedule TO (together with any supplements or amendments thereto, the "Schedule TO") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), and Key shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable Federal securities laws. Each of Parent, Merger Sub Key and the Company shall AMVC each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall Key further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company AMVC and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders shareholders of the CompanyAMVC. Parent and Merger Sub shall Key agrees to provide to the Company AMVC and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel Key may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult to cooperate with the Company AMVC and its counsel prior to in responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Tender Offer Agreement (Advanced Machine Vision Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms Article 8, and that no event shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to Article VI hereof and none any of the events conditions set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAnnex A, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall5:30 p.m. Eastern Daylight Savings time on July 28, and 2009, Parent shall cause Merger Sub toto commence, and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act” )), the Offer. In the Offer, each Share accepted by Merger Sub in accordance with the terms of the Securities Offer shall be exchanged for the right to receive from Merger Sub the Offer Price. Parent shall cause Merger Sub to accept for payment, and Exchange Commission (Merger Sub shall accept for payment, all Shares which have been validly tendered and not withdrawn pursuant to the "SEC")Offer as soon as practicable following the Expiration Date. The obligations Notwithstanding the above, the obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock for all Shares tendered pursuant to the Offer are shall be subject (x) to the condition that the number of Shares validly tendered and not withdrawn shall be at least the minimum number of Shares required to approve this Agreement, the Merger and the other transactions contemplated herein pursuant to the organizational documents of the Company and the FBCA (the “Minimum Condition” ), and (y) to the other conditions set forth in Exhibit Annex A. The initial expiration date conditions to the Offer set forth in Annex A are for the sole benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the Offer circumstances (including any action or inaction by Parent or Merger Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition or may be waived by Parent or Merger Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to the 20th business day following the commencement of the Offersentence. Merger Sub expressly reserves the right to increase the amount of consideration payable in the Offer and to waive any condition to the Offer or modify the terms of the Offer, except the Minimum Condition; provided that, without Merger Sub, at its sole option, may waive such Minimum Condition (i) if the number of Shares validly tendered and not withdrawn shall be at least equal to the difference between (x) the minimum number of Shares required to approve this Agreement, the Merger and the other transactions contemplated herein pursuant to the organizational documents of the Company and the FBCA, less (y) the number of Shares subject to Support Agreements or (ii) with the prior written consent of the Company. The failure of Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. Without the prior written consent of the Company, Merger Sub shall not (i) reduce decrease the number amount of shares of Company Common Stock subject to consideration payable in the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change Offer or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or (vi) otherwise amend reduce the time period during which the Offer shall remain open. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in the Offer.
(b) 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 with respect to the Offer (together with all amendments and supplements thereto, the “Schedule TO”) and related Offer to Purchase, form of letter of transmittal and summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and including any manner adverse supplements or amendments thereto, the “Offer Documents”) and (ii) cause the Offer Documents to be disseminated to the holders of Shares as and to the extent required by applicable Law. The Company Common Stockshall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable securities Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. Notwithstanding The Company hereby consents to the foregoinginclusion in the Offer Documents of all material disclosure relating to (i) the company financial advisor Xxxxx & Company LLC (including the amount of fees and other consideration that Xxxxx & Company LLC will receive upon consummation of or as a result of the Offer and the Merger, and the conditions therefor), (ii) the financial advisor Xxxxxxx & Company (including the amount of fees and other consideration that Xxxxxxx & Company shall receive in connection with the opinion referred to in Section 4.20), (iii) the opinions of each of Xxxxx & Company LLC and Xxxxxxx & Company referred to in Section 4.20 and (iv) the information that formed the basis for rendering each of such opinions, subject to the approval of the form of such disclosure by Xxxxx & Company LLC and Xxxxxxx & Company, respectively, such approval not to be unreasonably withheld or delayed. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Parent and Merger Sub shall 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, as soon as reasonably practicable and as and to the extent required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any written comments or other communications, and shall inform them of any oral comments or other communications, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (but ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall not be obligated togiven).
(c) Subject to the terms and conditions thereof, without the consent Offer shall remain open until at least midnight, New York City time, on the twentieth Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the date the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the CompanyOffer as so extended, also an “Expiration Date”); provided, however, that Merger Sub shall: (Ai) from time to time extend the Offer for one or more periods of time (whichup to 20 Business Days each, without the written consent length of the Company, shall not exceed ten days per extension) that each such period to be determined by Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedin its sole discretion, if at the scheduled expiration date of the Offer Expiration Date any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are the Offer, including the Minimum Condition and the conditions and requirements set forth in Annex A, shall not satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waivedwaived to the extent permitted by this Agreement, and (Bii) 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 (C) Offer. Merger Sub may, from time to time, extend the Offer on one or more occasions for an aggregate a period of not no more than ten business 20 days in the aggregate, if at the Minimum Tender Condition has been satisfied but fewer scheduled Expiration Date less than 9080% of the number of Shares then outstanding less the number of shares of held by persons subject to Support Agreements (the Company Common Stock “Support Agreement Shares”) have been validly tendered and not withdrawn. Parent and Notwithstanding the above, in no event shall Merger Sub agree that if all of the conditions be required to, or shall Parent be required to the Offer are not satisfied on any scheduled expiration date of the Offer, then cause Merger Sub shall from time to time and on each such occurrence to, extend the Offer for a period of time beyond the Outside Date (which, as hereinafter defined). In no event shall Merger Sub extend the Offer beyond the Outside Date without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as . Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, comply with the written consent obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the generality of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offerforegoing, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment payment, and purchase pay for, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On promptly following the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt acceptance of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase Shares for payment pursuant to the Offerterms and subject to the conditions of the Offer and this Agreement. This paragraph shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent or Merger Sub to terminate this Agreement pursuant to Article VIII.
Appears in 1 contract
Samples: Merger Agreement (Bankrate, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingSection 7.1, Merger Sub shall, as promptly as reasonably practicablepracticable (and, but in any event, no event later than six business days five (5) Business Days after the date later of (x) the filing by Parent with the SEC of Parent’s Annual Report on Form 10-K for its 2009 fiscal year, or (y) the filing by the Company with the SEC of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub toCompany’s Annual Report on Form 10-K for its 2009 fiscal year), commence the Offer (within the meaning of Rule 14d-2 promulgated under the applicable rules and regulations of Exchange Act) the Securities and Exchange Commission (the "SEC")Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares Each share of Company Common Stock tendered accepted by Merger Sub pursuant to the Offer are shall be exchanged for the right to receive from Merger Sub, as the holder may elect: (i) such number of shares or a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (A) $17.65 by (B) the Average Trading Price (such quotient, rounded to the nearest thousandth, being the “Stock Consideration”); or (ii) $17.65 in cash without interest (the “Cash Consideration”), subject to Section 1.1(c) through Section 1.1(f); provided, however, if Merger Sub has made the conditions set forth in Exhibit A. All-Cash Election, each share of Company Common Stock accepted by Merger Sub pursuant to the Offer shall be exchanged for the right to receive from Merger Sub the Cash Consideration. The initial expiration date of the Offer shall be the 20th business day twentieth Business Day (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”). The date on which Merger Sub commences the Offer is referred to as the “Offer Commencement Date”.
(b) The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(b)) (the last of such dates being referred to herein as the “Final Expiration Date”) and not withdrawn a number of shares of Company Common Stock which, together with the shares of Company Common Stock then owned by Parent and Merger Sub (if any), represents at least a majority of the sum of (i) the total number of shares of Company Common Stock outstanding immediately prior to the Final Expiration Date and (ii) the total number of shares of Company Common Stock issuable upon the exercise or conversion of all options, warrants, rights and convertible securities outstanding immediately prior to the Final Expiration Date (the “Minimum Condition” and such sum being the total shares of Company Common Stock on a “Fully Diluted Basis”) and to the other conditions set forth in Annex I hereto (together with the Minimum Condition, the “Offer Conditions”). The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. Parent and Merger Sub expressly reserves reserve the right to waive any condition to the Offer or modify Conditions and to make any change in the terms or conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Merger Sub shall not no change may be made which (iA) reduce decreases the number of shares of Company Common Stock subject to sought in the Offer, (iiB) reduce changes the price per share form or amount of Company Common Stock consideration to be paid pursuant (provided that the making of the All-Cash Election by the Merger Sub shall not be deemed to be such a change), (C) imposes conditions to the OfferOffer in addition to the Offer Conditions, (iiiD) change changes or waive waives the Minimum Tender Condition (as defined in Exhibit A), add to or any of the conditions set forth in Exhibit A clauses (2), (3), or modify any condition (4) of Annex I, (E) extends the expiration of the Offer (except as set forth in Exhibit A the following sentence), or (F) makes any other change to any of the terms and conditions to the Offer which is adverse in any manner adverse material respect to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders shares of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable Subject to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement, promptly after expiration ) of the OfferOffer Conditions, Merger Sub shall, and Parent shall cause Merger Sub it to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(b)) (the date on which shares of Company Common Stock are first accepted for payment under the Offer, the “Acceptance Date”) and shall pay for all such shares of Company Common Stock promptly after acceptance; provided, however, that (I) Merger Sub is permitted to accept and pay may extend the Offer for under applicable law.
successive extension periods not in excess of ten (b10) On Business Days per extension if, at the scheduled expiration date of commencement the Offer or any extension thereof, any of the Offer Conditions shall not have been satisfied or waived, until such time as such conditions are satisfied or waived, (II) if requested by the Company on any one occasion prior to or at the scheduled expiration date of the Offer, Parent and Merger Sub shall file with extend the SECOffer for a period of ten (10) Business Days in the event that any of the Offer Conditions, and cause other than the condition in paragraph (b) in Annex I in circumstances involving (1) a willful breach of any of the Company’s covenants, obligations or agreements hereunder or (2) a breach that would not reasonably be expected to be disseminated cured by the scheduled expiration date of the Offer as so extended pursuant to such request, shall not have been satisfied or waived at the Company's stockholderstime of such request, as (III) Merger Sub may extend the Offer if and to the extent required by the applicable Federal securities lawsrules and regulations of the SEC, a Tender Offer Statement on Schedule TO with respect to NASDAQ or the OfferNYSE, which shall contain an offer to purchase (IV) if Merger Sub makes the All-Cash Election, then Merger Sub may, in its discretion (and a related letter without the consent of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which Company or any other Person), extend the Offer will be made, together with any supplements or amendments thereto, until the "Offer Documents"). Each of Parent, date on which materials disclosing that Merger Sub and has made the Company shall 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 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 the Offer Documents as so amended or supplemented to be All-Cash Election are disseminated to the Company's stockholders’s stockholders and for a period of ten (10) Business Days after such date, in each case as and to (V) Merger Sub may extend the extent required by Offer on one occasion only for no more than ten (10) Business Days if all of the Offer Conditions have been satisfied or deemed advisable under applicable Federal securities laws. The waived, but less than 90% of the total shares of Company Common Stock on a Fully Diluted Basis have been validly tendered and its counsel not properly withdrawn at the otherwise scheduled Final Expiration Date; provided, further, that no such extension beyond the Outside Date shall be given reasonable opportunity to review and comment upon made without the Offer Documents prior to their filing with the SEC or dissemination to the stockholders consent of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause Subject to be provided to Merger Sub on a timely basis the funds necessary to purchase any Section 1.1(d) through Section 1.1(f), each holder of shares of Company Common Stock that shall be entitled to elect to receive either (i) the Cash Consideration (a “Cash Election”) in respect of all shares of Company Common Stock held by such stockholder (each such share being a “Cash Election Share”), or (ii) Stock Consideration (a “Stock Election”) in respect of all shares of Company Common Stock held by such stockholder (each such share being a “Stock Election Share”). With respect to each share of Company Common Stock for which no Cash Election or Stock Election has been made, the holder thereof shall be deemed to have made a Stock Election (each such share being a “No Election Share”). Any Cash Election or Stock Election shall be made solely on a form furnished by Merger Sub becomes obligated for that purpose (the “Form of Election”), included as part of the letter of election and transmittal included as part of the Offer Documents (the “Election and Transmittal Letter”), each in a form that is reasonably satisfactory to purchase the Company. Holders of record who hold shares of Company Common Stock as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders.
(d) Notwithstanding any provision of this Agreement to the contrary and subject to Section 1.1(e) and Section 1.1(f):
(i) If the product of (x) the total number of Cash Election Shares and (y) the Cash Consideration (such product being the “Elected Cash Consideration”) is greater than the product of fifty percent (50%) of the number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub pursuant to the Offer and the Cash Consideration (such product, subject to adjustment as provided in Section 1.1(d)(iv), being the “Available Cash Amount”), then:
(A) each Stock Election Share and each No Election Share shall be converted into the right to receive the Stock Consideration; and
(B) each Cash Election Share shall be converted into the right to receive: (1) an amount in cash equal to the quotient obtained by dividing (I) the Available Cash Amount by (II) the total number of Cash Election Shares (such quotient being the “Adjusted Cash Consideration”); and (2) the number of shares or a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (I) the amount equal to (a) the Cash Consideration minus (b) the Adjusted Cash Consideration by (II) the Average Trading Price.
(ii) If the product of (x) the sum of the total number of Stock Election Shares and the total number of No Election Shares and (y) the Stock Consideration (such product being the “Elected Stock Consideration”) is greater than the product of fifty percent (50%) of the number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub pursuant to the Offer and the Stock Consideration (such product, subject to adjustment as provided in Section 1.1(d)(iv), being the “Available Stock Amount”), then:
(A) each Cash Election Share shall be converted into the right to receive the Cash Consideration; and
(B) each Stock Election Share and each No Election Share shall be converted into the right to receive: (1) the number of shares or a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (I) the Available Stock Amount by (II) the sum of the total number of Stock Election Shares and the total number of No Election Shares (such quotient being the “Adjusted Stock Consideration”); and (2) an amount in cash equal to the product of (I) an amount equal to (a) the Stock Consideration minus (b) the Adjusted Stock Consideration and (II) the Average Trading Price.
(iii) If the Elected Cash Consideration equals the Available Cash Amount (and the Available Stock Amount as initially calculated is not adjusted pursuant to Section 1.1(d)(iv)), then:
(A) each Cash Election Share shall be converted into the right to receive the Cash Consideration; and
(B) each Stock Election Share and each No Election Share shall be converted into the right to receive the Stock Consideration.
(iv) Notwithstanding any provision of this Agreement to the contrary, in no event shall the total number of shares of Parent Common Stock issuable pursuant to the Offer exceed the Stock Consideration Cap (as defined below in this Section 1.1(d)(iv)); and accordingly, if the Stock Consideration Cap is less than the Available Stock Amount as initially calculated pursuant to Section 1.1(d)(ii), then (A) the “Available Stock Amount” as so calculated shall be adjusted and instead shall be equal to the product of (I) 19.9% of the number of shares of Parent Common Stock outstanding immediately prior to the Acceptance Date and (II) the quotient obtained by dividing (1) the total number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub pursuant to the Offer., by (2) the total number of shares of Company Common Stock outstanding as of the Acceptance Date (such product also being the “Stock Consideration Cap”); and (B) the “
Appears in 1 contract
Samples: Merger Agreement (Manpower Inc /Wi/)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 8.01 and none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A or Annex B hereto shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six five business days after the date of following the public announcement of the execution of this Agreement Merger Sub shallAgreement, Acquisition and Parent the Company shall cause Merger Sub to, jointly commence the Offer within Offer. Upon the meaning terms and subject to the prior satisfaction or waiver of the applicable rules and regulations conditions of the Securities Offer, Acquisition and Exchange Commission the Company shall accept for payment and pay for Shares which have been validly tendered and not withdrawn as soon as practicable after the expiration of the Offer.
(the "SEC"). b) The obligations of Merger Sub to, and of Parent Acquisition to cause Merger Sub to, accept for payment, and pay for, payment any shares of Company Common Stock Shares tendered pursuant shall be subject to the Offer are satisfaction of only those conditions set forth in Annex A hereto and the obligation of the Company to accept for payment any Shares tendered shall be subject to the satisfaction of only those conditions set forth in Annex B hereto.
(c) Subject to the requirements of applicable law, Acquisition may waive 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. Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the OfferAnnex A in its sole discretion; PROVIDED, except thatHOWEVER, that without the prior written consent of the Company, Merger Sub shall Acquisition will not (i) reduce decrease the Per Share Amount or the number of shares of Company Common Stock subject to Shares sought in the Purchaser Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable to be paid in the Purchaser Offer, (iii) amend or waive the Minimum Condition (as defined Annex A hereto) or impose any additional conditions on the Purchaser Offer or other than the conditions set forth in Annex A, (viiv) otherwise amend any other term of the Purchaser Offer in any manner adverse to the holders of Shares or (v) extend the expiration date of the Purchaser Offer beyond April 30, 2000.
(d) Subject to the requirements of applicable law, the Company Common Stock. may waive the conditions set forth in Annex B in its sole discretion; PROVIDED, HOWEVER, that without prior written consent of Acquisition, the Company will not (i) decrease the Per Share Amount or the number of Shares sought in the Company Offer, (ii) change the form of consideration to be paid in the Company Offer, (iii) amend or waive the Minimum Condition or impose any additional conditions on the Company Offer other than the conditions set forth in Annex B, (iv) amend any other term of the Company Offer in any manner adverse to Acquisition or (v) extend the expiration date of the Company Offer beyond April 30, 2000.
(e) Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)subject in all events to Section 8.01, Acquisition may, without the consent of the Company, (A) extend the Purchaser Offer for one or more periods of at any time, and from time to time (whichand at the direction of Acquisition, without the written consent of Company shall accordingly extend the CompanyCompany Offer), shall not exceed ten days per extension(i) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation the obligations of Acquisition and the Company to purchase shares of Company Common Stock are accept Shares for payment (other than the Minimum Condition, as to which Acquisition may extend the Purchaser Offer up to 10 business days) shall not satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived, ; or (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the its staff thereof applicable to the Offer or Offer.
(Cf) Notwithstanding the foregoing, Acquisition may, without the consent of the Company (and at the direction of Acquisition and provided that the representation set forth in Section 5.05 shall remain true and correct, the Company shall), increase the Per Share Amount and extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on extent required by applicable law in connection with any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable lawincrease.
(bg) On As soon as practicable following the date of commencement of the Offer, Parent the Company shall commence a tender offer and Merger Sub consent solicitation for all of its outstanding 11.75% Senior Subordinated Notes due 2005 and 11.75% Series C Senior Subordinated Notes due 2005 (the "Debt Tender Offer"). The Debt Tender Offer shall be made by means of an offer to purchase and consent solicitation on the terms set forth in Annex C to this Agreement.
(h) As soon as practicable on the date the Offer is commenced, with respect to the Offer (i) the parties hereto, together with such other persons as shall be required to be included as parties to such filing, shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO (together with any amendments and supplements thereto and including the exhibits thereto, the "Schedule TO"). The Schedule TO shall contain or incorporate by reference an offer to purchase and a form of letter of transmittal and any other documents related to the Offer (the Schedule TO, the offer to purchase and such other documents, together with any amendments and supplements thereto, are collectively referred to herein as 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 the Company or Acquisition with respect to information supplied by the other party in writing for inclusion in the Offer Documents. Each of the parties hereto shall take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company parties hereto shall 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 each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented corrected, to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company Each of the parties hereto and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders SEC. In addition, each of the Company. Parent and Merger Sub parties hereto shall provide to the Company other party and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their other communications that such party or its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such commentsor other communications.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Transportation Technologies Industries Inc)
The Offer. (a) Subject to The Merger Agreement provides that the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of Purchaser will commence the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, Offer as promptly as reasonably practicable, but practicable (and in no any event later than six within 10 business days days) after the date execution of the public announcement of this Agreement Merger Sub shallAgreement, and Parent shall cause Merger Sub tothat, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date satisfaction of the Offer shall be Minimum Condition and the 20th business day following the commencement other conditions that are described in Section 14—“Conditions of the Offer,” the Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn in the Offer as promptly as practicable after the Purchaser is legally entitled to do so. Merger Sub Cytyc and the Purchaser expressly reserves reserved the right to waive any condition to increase the Offer Price or modify to make any other changes in the terms and conditions of the Offer, except that, that without the Adeza’s prior written consent of approval the Company, Merger Sub shall Purchaser is not permitted to (i) reduce decrease the number of shares of Company Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) impose conditions or requirements to the Offer that are different than or in addition to the conditions and requirements described in Section 14—“Conditions of the Offer,” (v) amend or waive the Minimum Condition, (vi) otherwise amend any of the conditions or requirements to the Offer described in Section 14—“Conditions of the Offer,” or (vii) extend the expiration of the Offer in a manner other than as required by the Merger Agreement. The Merger Agreement provides that the Offer Price will be adjusted appropriately to reflect the effect of any manner adverse stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the holders of Company Common StockShares occurring prior to the Expiration Date. Notwithstanding The Merger Agreement provides that the foregoingPurchaser will extend the Offer: • to the extent required by applicable laws, Merger Sub may (but shall not be obligated to), without the consent rules or regulations of the Company, (A) extend SEC or the Offer NASDAQ Global Select Market; • for one or more periods of time (which10 business days each, without the written consent of the Companyor any lesser period ending on May 16, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied2007, if at the scheduled expiration date of the Offer Expiration Date any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer have not been satisfied; and • for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period periods of not more than ten 10 business days each, or any lesser period ending on June 15, 2007, if at the Minimum Tender Expiration Date the HSR Condition has and/or the Governmental Approval Condition have not been satisfied but fewer than satisfied. After acceptance for payment of Shares in the Offer, if Cytyc, the Purchaser and their subsidiaries and affiliates do not hold, in the aggregate, at least 90% of the shares issued and outstanding Shares so as to permit the Purchaser to complete the Short-Form Merger, then the Purchaser may provide a Subsequent Offering Period and, if more than 80% of the Company Common Stock issued and outstanding Shares have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined withdrawn in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.the
Appears in 1 contract
Samples: Offer to Purchase (Cytyc Corp)
The Offer. (a) Subject to Not later than the conditions first business day after the date of this Agreement Agreement, Acquiror, Acquisition Subsidiary and provided Xxxxx will make a public announcement of the Offer.
(b) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 7.1 and none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A hereto shall have occurred or be existing, Acquisition Subsidiary shall commence, and Acquiror shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six ten (10) business days after the date of the initial public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, Acquisition Subsidiary’s intention to commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer, which announcement will be made on November 16, 2007. The obligations obligation of Merger Sub to, and of Parent Acquisition Subsidiary to cause Merger Sub to, accept for payment, payment and pay for, any shares of Company Common Stock for Xxxxx Shares tendered pursuant to the Offer are shall be subject only to the satisfaction of the conditions set forth in Exhibit A. The initial Annex A hereto, including the condition that a number of Xxxxx Shares representing that number of Xxxxx Shares which would equal more than fifty percent (50%) of the Xxxxx Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer shall be Offer, and not withdrawn (the 20th business day following the commencement of the Offer“Minimum Condition”). Merger Sub Acquisition Subsidiary expressly reserves the right to waive any condition such condition, to increase the Offer or modify Per Share Amount and to make any other changes in the terms and conditions of the Offer; provided, except however, that, without the prior written consent of the CompanyXxxxx, Merger Sub shall Acquisition Subsidiary will not (i) reduce decrease the number of shares of Company Common Stock subject to the OfferPer Share Amount, (ii) reduce the price per share maximum number of Company Common Stock Xxxxx Shares to be paid pursuant to purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or waive supplement the Minimum Tender Condition (as defined in Exhibit A), add conditions to the conditions Offer set forth in Exhibit Annex A or modify any condition set forth in Exhibit A hereto in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the OfferXxxxx Shares, (v) change extend the form expiration date of consideration payable in the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) otherwise amend make any other change in the terms or conditions of the Offer in any manner which is adverse to the holders of Company Common StockXxxxx Shares. Notwithstanding The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the foregoingterms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Merger Sub may Acquisition Subsidiary shall, and Acquiror shall cause Acquisition Subsidiary to, accept for payment and pay, as promptly as practicable after expiration of the Offer, for all Xxxxx Shares validly tendered and not withdrawn (but the “Acceptance Time”).
(c) On the date of commencement of the Offer, Acquiror and Acquisition Subsidiary shall not be obligated tofile with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the “Schedule TO”), without with respect to the consent Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and the forms of related letters of transmittal (the CompanySchedule TO, (A) extend the Offer for one to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or more periods of time (which, without the written consent of the Companygiven to Xxxxx’x stockholders, shall not exceed ten days per extension) 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 in complying with the foregoing commitments, Acquiror and Acquisition Subsidiary may rely on the accuracy of any information provided in writing by Xxxxx for inclusion or Agreement and Plan of Merger Sub reasonably believes are incorporation by reference into the Offer Documents. Xxxxx, Acquiror and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading in any material respect, and Acquiror and Acquisition Subsidiary shall take all steps necessary to cause the conditions Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Xxxxx Shares, in each case as and to the extent required by applicable Law. Xxxxx and its counsel shall be given the reasonable opportunity to review and comment on the Offer set forth herein Documents prior to be satisfiedthe filing thereof with the SEC. Acquiror and Acquisition Subsidiary shall provide Xxxxx and its counsel with a copy of, and shall consult with Xxxxx regarding any telephonic notification of any oral comments, and shall consult with Xxxxx before responding to any written comments, in each case that Acquiror or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that Acquiror or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its commercially reasonable efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms and conditions hereof, the Offer shall remain open until midnight, Eastern Time, on the date that is twenty (20) business days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of Xxxxx, Acquisition Subsidiary may (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares set forth in Annex A shall not have been satisfied or waived, for one (1) or more periods of Company Common Stock are not satisfiedmore than ten (10) business days each, until such time as such conditions are satisfied or waived, not to exceed thirty (B30) business days in the aggregate, (ii) extend the Offer for any period one (1) or more periods if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer, not more than the period or periods required by such rule, regulation, interpretation or position, or (Ciii) extend the Offer on for one (1) or more occasions periods for an aggregate period of not more than ten twenty (20) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of Xxxxx Shares which would equal more than ninety percent (90%) of the issued and outstanding Xxxxx Shares on a fully-diluted basis; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Tender Condition has been satisfied but fewer than 90% and the conditions set forth in paragraphs (a), (b) and (d) in Annex A. Notwithstanding the foregoing, Acquiror and Acquisition Subsidiary may, without the consent of Xxxxx, extend the offer in accordance with Rule 14d-11 of the shares Exchange Act. In addition, the Per Share Amount 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 Xxxxx. If on the initial scheduled expiration date of the Company Common Stock have been validly tendered Offer or any extension thereof, any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), any applicable Law of Germany regulating competition, merger control or exchange controls or any other applicable foreign Laws regulating competition, antitrust, investment or exchange controls has not expired or terminated, Acquisition Subsidiary shall, if requested to do so by Xxxxx, extend the expiration date of the Offer for up to ten (10) business days. In addition, Acquiror and not withdrawn. Parent and Merger Sub Acquisition Subsidiary each agree that if all any of the conditions to the Offer set forth in paragraphs (a) or (b) of Annex A are not satisfied satisfied, including the satisfaction of the Minimum Condition, on any scheduled expiration date of the Offer, then Merger Sub shall from time Acquisition Subsidiary shall, and Acquiror shall, if requested to time and on each such occurrence do so by Xxxxx, cause Acquisition Subsidiary to, extend the Offer one time for a period of time up to ten (which, without the written consent of the Company, shall not exceed ten days per extension10) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar business days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Coley Pharmaceutical Group, Inc.)
The Offer. (a1) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none the satisfaction or waiver of the events conditions set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAnnex A, as promptly as reasonably practicable, practicable but in no event later than six five business days after the date of the public announcement by Parent and the Company of this Agreement Merger Agreement, Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer. The obligations of Merger initial scheduled expiration date for the Offer shall be January 5, 1999. Sub shall be obligated to, and of Parent to shall cause Merger Sub to, accept for payment, and pay for, any shares for as promptly as practicable after the expiration of Company Common Stock the Offer all Shares validly tendered pursuant to the Offer are and not withdrawn subject only to the conditions set forth in Exhibit A. The initial expiration date A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the consent of the Offer Company, Sub shall be not waive the 20th business day following Minimum Condition (as defined in Exhibit A)) and to the commencement terms and conditions of the Offerthis Agreement. 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 (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockOffer Conditions, (iv) except as provided below in this Section 1.01(a)the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common Stockthe Shares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedOffer, if at the initial scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are Offer Conditions shall not satisfiedbe satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or and (C) extend the Offer on one or more occasions for an aggregate period of not more than ten 10 business days beyond the latest expiration date that would otherwise be permitted under clauses (A) or (B) of this sentence, if the Minimum Tender Condition has on such expiration date there shall not have been satisfied but fewer than tendered at least 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable lawoutstanding Shares.
(b2) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall agree to provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c3) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Circon Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingSection 11.01, as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six business days after 10 Business Days following the date of the public announcement of this Agreement Agreement, Merger Sub shall, and Parent Subsidiary shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations of Exchange Act) the Securities and Exchange Commission (the "SEC")Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. Annex I hereto (the “Offer Conditions”). The initial expiration date of on which Merger Subsidiary commences the Offer shall be is referred to as the 20th business day following the commencement of the Offer. “Offer Commencement Date.”
(b) Merger Sub Subsidiary expressly reserves the right to waive any condition of the Offer Conditions and to make any change in the terms of or conditions to the Offer (other than the Minimum Condition (as defined in Annex I), which is non-waivable and may not be amended or modify the terms of the Offer, except modified); provided that, without the prior written consent of the CompanyCompany (provided that such consent has been approved by the Special Committee), Merger Sub Subsidiary shall not not:
(i) reduce decrease the number of shares of Company Common Stock subject to the Offer, Offer Price;
(ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable to be paid in the Offer;
(iii) decrease the number of Shares subject to the Offer;
(iv) extend or otherwise change the Expiration Time of the Offer or except as provided herein;
(v) impose conditions to the Offer other than the Offer Conditions; or
(vi) otherwise amend amend, modify or supplement any of the terms or conditions of the Offer in any a manner adverse to that adversely affects the holders of Company Common StockShares.
(c) Unless extended as provided in this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, Merger Sub may (but Subsidiary shall, and Parent shall not be obligated cause it to), without the consent of the Company, (A) extend the Offer (i) for one or more periods consecutive increments of not more than 10 Business Days from time (whichto time if, without at the written consent then-scheduled expiration time of the CompanyOffer, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions any of the Offer set forth herein Conditions shall not have been satisfied or waived; provided that Parent shall not be required to be satisfied, if at extend the scheduled expiration Offer pursuant to this clause (i) beyond the earlier of (A) the End Date and (B) the date that is 10 Business Days after the date that all of the Offer any of Conditions (other than the conditions Minimum Condition and those that by their nature are to Merger Sub's obligation be satisfied immediately prior to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are the Acceptance Time) have been satisfied or waived, and (Bii) extend the Offer for any period required by (x) any applicable rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (Cy) extend the Offer on one rules and regulations of NASDAQ or more occasions for an aggregate period of not more than ten business days if Applicable Law; and provided further that, without the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Company’s prior written consent, Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, Subsidiary shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date then-scheduled expiration time if an Adverse Recommendation Change has occurred (as defined in Section 6.01(bexcept for any extension pursuant to clause (ii)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for The time when the Offer expires (taking into account any permitted or required extensions in accordance with Rule 14d-11 of this Section 2.01(c)) is referred to herein as the Securities Exchange Act of 1934“Expiration Time.” Merger Subsidiary shall not, as amended (and Parent shall cause it not to, terminate or withdraw the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect Offer prior to the Company's San Diego facility has not been consummated on or prior to any then-scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions Expiration Time of the Offer and unless this Agreement, promptly after expiration of Agreement is validly terminated in accordance with its terms. In the Offerevent that this Agreement is terminated, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub it to, promptly, irrevocably and unconditionally terminate the Offer. In the event that the Offer is terminated, Merger Subsidiary shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on its behalf to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, (i) accept for payment payment, as promptly as practicable (and purchase in any event within one Business Day) after the Expiration Time, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”, and the date on which the Acceptance Time occurs, the “Offer Closing Date”), and (ii) promptly thereafter pay for under applicable lawsuch Shares.
(be) On As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Sub Subsidiary shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto, which and including all exhibits thereto, the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits, the Offer to purchase and Purchase, a related form of letter of transmittal and a summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to holders of Shares to the extent required by applicable U.S. federal securities laws. Parent and Merger Subsidiary shall use their reasonable best efforts to ensure that the Schedule TO, and any amendments or supplements thereto, comply in all material respects with the rules and regulations promulgated by the SEC under the Exchange Act. Each of Parent, Merger Sub Subsidiary and the Company shall agrees promptly to correct any information provided by it or on its behalf for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect, and each of . Parent and Merger Sub Subsidiary shall take all steps necessary to amend or supplement the Offer Documents and use their reasonable best efforts to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws or deemed advisable under applicable Federal securities lawsthe rules and regulations of NASDAQ. The Company shall furnish to Parent and Merger Subsidiary the information relating to the Company required by the Exchange Act to be set forth in the Schedule TO and the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and any Offer Documents prior to their filing Document each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Merger Sub Subsidiary shall provide to the Company and its counsel in writing with (i) any comments or other communications, whether written comments (and orallyor oral, any oral comments), that Parent, Merger Sub Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt of such those comments or other communications and (ii) 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 consult with be given), including by using reasonable best efforts to give the Company the opportunity to participate with Parent and Merger Subsidiary and its counsel prior to responding to in any such comments.
(c) Parent shall provide substantive discussions or cause to be provided to Merger Sub on a timely basis meetings with the funds necessary to purchase any shares of SEC. The Company Common Stock that Merger Sub becomes obligated to purchase pursuant hereby consents to the Offerinclusion 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 accordance with Section 7.03(b).
Appears in 1 contract
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none the satisfaction or waiver of the events conditions set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingthis Agreement, as promptly as reasonably practicable, practicable but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub March 29, 1999, Acquisition Subsidiary shall, and Parent ServiceMaster shall cause Merger Sub Acquisition Subsidiary to, commence the Offer. ServiceMaster shall not be obligated to commence the Offer within if any state of facts or events shall exist which would entitle ServiceMaster to not acquire the meaning of ARS Shares tendered in response to the applicable rules and regulations of Offer under the Securities and Exchange Commission conditions set forth in Section 9.1, other than the Minimum Condition (the "SEC"as hereinafter defined). The obligations of Merger Sub initial scheduled expiration date for the Offer shall be April 26, 1999. Acquisition Subsidiary shall be obligated to, and of Parent to ServiceMaster shall cause Merger Sub Acquisition Subsidiary to, accept for payment, and pay forfor as promptly as practicable after the expiration of the Offer, any shares of Company Common Stock all ARS Shares validly tendered pursuant to the Offer are and not withdrawn, subject only to the conditions with respect to the Offer set forth in Exhibit A. The initial expiration date Section 9.1 (any of which may be waived in whole or in part by Acquisition Subsidiary in its sole discretion); provided that, without the Offer consent of ARS, Acquisition Subsidiary shall be not waive the 20th business day following the commencement of the OfferMinimum Condition. Merger Sub Acquisition Subsidiary 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 CompanyARS, Merger Sub Acquisition Subsidiary shall not (i) reduce the number of shares of Company Common Stock ARS Shares subject to the Offer, (ii) reduce the price Offer Price below $5.75 per share of Company Common Stock to be paid pursuant ARS Share, net to the Offerseller in cash, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions with respect to the Offer set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockSection 9.1, (iv) except as provided below in this Section 1.01(a)the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common Stockthe ARS Shares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)Acquisition Subsidiary may, without the consent of the CompanyARS, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedOffer, if at the initial scheduled or extended expiration date of the Offer any of the conditions with respect to Merger Sub's obligation to purchase shares of Company Common Stock are the Offer set forth in Section 9.1 shall not satisfiedbe satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or and (C) extend the Offer on one or more occasions for an aggregate period of not more than ten 5 business days beyond the latest expiration date that would otherwise be permitted under clauses (A) or (B) of this sentence, if the Minimum Tender Condition has on such expiration date there shall not have been satisfied but fewer than 90% tendered at least 90 percent of the shares of outstanding ARS Shares. ServiceMaster will (and will cause Acquisition Subsidiary to) consummate the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of as soon as practicable after the conditions to the Offer are not satisfied on any scheduled expiration date consummation of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent ServiceMaster and Merger Sub Acquisition Subsidiary shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). ServiceMaster and Acquisition Subsidiary agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the stockholders of ARS, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by ServiceMaster or Acquisition Subsidiary with respect to information supplied by ARS or any of its affiliates or representatives specifically for inclusion or incorporation by reference in the Offer Documents. Each of ParentServiceMaster, Merger Sub Acquisition Subsidiary and the Company shall ARS agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent ServiceMaster and Merger Sub shall Acquisition Subsidiary further agree to take all steps reasonably necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersstockholders of ARS, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company ARS and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanyARS. Parent ServiceMaster and Merger Sub shall Acquisition Subsidiary agree to provide to the Company ARS and its counsel in writing any written comments (and orallyServiceMaster, any oral comments), Parent, Merger Sub Acquisition Subsidiary or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
. (c) Parent ServiceMaster shall provide or cause to be provided to Merger Sub Acquisition Subsidiary on a timely basis the funds necessary to purchase accept for payment, and to pay for, any shares of Company Common Stock ARS Shares that Merger Sub Acquisition Subsidiary becomes obligated to purchase accept for payment, and to pay for, pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Servicemaster Co)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 8.01 and that none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingexisting (unless such event shall have been waived by Acquisition Sub), Acquiror shall cause Acquisition Sub to commence, and Acquisition Sub shall commence, the Offer at the Per Share Amount as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six five business days after the date of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, Acquisition Sub's intention to commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of for the Offer shall be the 20th business day following the commencement of the Offer. Merger The obligation of Acquisition Sub to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the condition (the "Minimum Condition") that at least the number of Shares that constitute a majority of the then outstanding Shares (determined on a fully-diluted basis (as defined herein)) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver, in whole or in part by Acquisition Sub in its sole discretion, of the other conditions set forth in Exhibit A hereto. Acquisition Sub expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the Offer or modify Per Share Amount, and to make any other changes in the terms and conditions of the Offer, ; except that, without the prior written consent of the Company, Merger Sub shall not that (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this notwithstanding Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to8.03), without the consent of the CompanyTarget, no change may be made by Acquisition Sub which (A) extend decreases the Offer for one Per Share Amount (or more periods changes the form of time consideration to be paid in the Offer), (whichB) reduces the maximum number of Shares to be purchased in the Offer, without the written consent of the Company, shall not exceed ten days per extension(C) that Merger Sub reasonably believes are necessary adds to cause or modifies the conditions of to the Offer set forth herein in Exhibit A hereto, or (D) extends, amends or changes any other terms of the Offer in any manner materially adverse to be satisfiedthe holders of Shares. Notwithstanding the foregoing sentence, Acquisition Sub may, without the consent of Target, (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Acquisition Sub's obligation obligations to purchase shares of Company Common Stock are the Shares have not satisfiedbeen satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer from time to time for up to a maximum of an aggregate of 15 business days beyond the latest expiration date that would otherwise be permitted in this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares, and/or (iii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law. Notwithstanding the foregoing, (Cx) extend the Offer on one or more occasions for an aggregate period may not, without Target's prior written consent, be extended beyond the date of not more than ten business days termination of this Agreement pursuant to Section 8.01 and (y) the Offer may not, without Target's prior written consent, be extended pursuant to clause (i), above, if the Minimum Tender Condition has been satisfied but fewer than 90% failure to satisfy any condition was caused by a material breach by Acquiror or Acquisition Sub of the shares any of the Company Common Stock have been validly tendered and not withdrawntheir representations, warranties, covenants or agreements set forth in this Agreement. Parent and Merger Sub agree that if all The Per Share Amount shall, subject to applicable withholding of the conditions taxes, be net to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (whichseller in cash, without the written consent of the Companyinterest thereon, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition), Acquisition Sub shall accept for payment and this Agreementpay, as promptly as practicable after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept the Per Share Amount for payment and purchase all shares of Company Common Stock Shares validly tendered and not withdrawn withdrawn. Acquisition Sub may, at any time, transfer or assign to one or more corporations directly or indirectly wholly-owned by Acquiror the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but any such transfer or assignment shall not relieve Acquisition Sub of its obligations under the Offer that Merger or prejudice the rights of tendering stockholders to receive payment for Shares validly tendered and accepted for payment. Acquiror shall provide or cause to be provided to Acquisition Sub is permitted on a timely basis all funds necessary to accept for payment, and pay for, all Shares that Acquisition Sub becomes obligated to accept for under applicable lawpayment, and pay for, pursuant to the Offer.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Acquisition Sub shall file with the SEC, SEC and cause disseminate to be disseminated to the Company's stockholders, as and holders of Shares to the extent required by applicable Federal securities laws, law a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which Offer and the other Transactions (as hereinafter defined). The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule TO and the documents included therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). Each of ParentAcquiror, Merger Acquisition Sub and the Company shall Target agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respect, and each of Parent Acquiror and Merger Acquisition Sub shall further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company Target and its counsel shall be given reasonable an opportunity to review and comment upon on the Offer Documents and any amendments thereto prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent Acquiror and Merger Acquisition Sub shall will provide to the Company Target and its counsel in writing with a copy of any written comments (and orally, or telephonic notification of any oral comments), Parent, Merger verbal comments Acquiror or Acquisition Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments thereof and shall consult with the Company will provide Target and its counsel prior to responding to with a copy of any such comments.
(c) Parent written responses and telephonic notification of any verbal response of Acquiror, Acquisition Sub or their counsel. In the event that the Offer is terminated or withdrawn by Acquisition Sub, Acquiror and Acquisition Sub shall provide or cause all tendered Shares 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 returned to the Offerregistered holders of the Shares represented by the certificate or certificates surrendered to the Paying Agent (as defined herein).
Appears in 1 contract
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none the satisfac tion or waiver of the events conditions set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAnnex A, as promptly as reasonably practicable, practicable but in no event later than six five business days after the date of the public announcement by Parent and the Company of this Agreement Merger Agreement, Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer. The obligations of Merger initial scheduled expiration date for the Offer shall be January 5, 1999. Sub shall be obligated to, and of Parent to shall cause Merger Sub to, accept for payment, and pay for, any shares for as promptly as practicable after the expiration of Company Common Stock the Offer all Shares validly tendered pursuant to the Offer are and not withdrawn subject only to the conditions set forth in Exhibit A. The initial expiration date A (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the consent of the Offer Company, Sub shall be not waive the 20th business day following Minimum Condition (as defined in Exhibit A)) and to the commencement terms and conditions of the Offerthis Agreement. 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 (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockOffer Conditions, (iv) except as provided below in this Section 1.01(a)the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common Stockthe Shares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedOffer, if at the initial scheduled expiration or extended expira tion date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are Offer Conditions shall not satisfiedbe satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or and (C) extend the Offer on one or more occasions for an aggregate period of not more than ten 10 business days beyond the latest expiration date that would other wise be permitted under clauses (A) or (B) of this sentence, if the Minimum Tender Condition has on such expiration date there shall not have been satisfied but fewer than tendered at least 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable lawoutstanding Shares.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall agree to provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject The Company hereby agrees to use its best efforts (i) to facilitate the review by the special committee of the Company Board (the "Offer Review Committee") of the Offer and (ii) subject to the conditions fulfillment of this Agreement the fiduciary duties of the Company Board under applicable Laws, to procure that the Company Board recommend the holders of Shares to accept the Offer and provided that this Agreement shall not have been terminated in accordance with its terms tender their Shares to Merger Sub pursuant to Article VI hereof and none the Offer (the "Company Recommendation"). Promptly after receipt of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingdocuments relating to the Offer, as promptly as reasonably practicable, but in no event later than six business days after the date of Company will publicly announce and file the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Taiwan Financial Supervisory Commission (the "SECFSC")) a statement for the required disclosure according to the applicable FSC tender offer rules, including, among others, the Company Board's and the Offer Review Committee's comments to the Company's shareholders regarding the Offer. The obligations of Company agrees that it will not provide any negative comments on the Offer.
(b) Merger Sub towill publicly announce the transactions contemplated by this Agreement on May 22, 2014, make applicable filings with the FSC for the Offer by May 23, 2014, and commence the Offer on May 26, 2014. The terms and conditions of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to set out in the conditions set forth in Exhibit A. prospectus of the Offer. The Offer price per Share is NT$143.
(c) The initial expiration date of the Offer shall be on the 20th business 50th day following after the commencement of the Offer. Merger Sub expressly reserves Offer (the right to waive any condition to the Offer or modify the terms period of the Offer, except thatas it may be extended as below, without shall be referred to as the prior written consent "Offer Period"). As a condition for consummation of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share minimum number of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but Shares tendered shall not be obligated toless than 27,300,429 (the "Minimum Shares"), without . If during the consent initial Offer Period any of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are shall have not satisfied, until such time as such conditions are been satisfied or waivedwaived by Merger Sub (if permitted hereunder), (B) Merger Sub may extend the Offer for any an additional 30 days or such shorter period required as permitted by any rule, regulation, interpretation or position of applicable Law. So long as the SEC or the staff thereof applicable to Minimum Shares is tendered within the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered Period and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are have been satisfied or waivedwaived by Merger Sub, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions closing of the Offer and this Agreement, promptly will take place within seven (7) Business Days after the expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable lawPeriod.
(bd) On or before the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC, and cause to be disseminated FSC the documents relating to the Company's stockholders, Offer as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to Law or the OfferFSC, which shall contain an offer to purchase the prospectus and a forms of the related letter letters of transmittal transmittal, public announcement and summary advertisement (such Schedule TO other ancillary documents and the documents included therein instruments required by applicable Law pursuant to which the Offer will be made, together made (collectively with any supplements or supplements, amendments and exhibits thereto, and all deliveries, mailings and notices required by applicable Law, the "Offer Documents"). Each of 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 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 (ii) cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and holders of Shares and/or be posted to the Market Observation Post System ("MOPS") to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such commentsLaw.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Section 1.1.1 Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingSection 7.1 hereof, Merger Sub shall, as promptly as reasonably practicable, but in no event later than six business days practicable after the date of the public announcement of this Agreement Merger Sub shall, hereof (and Parent shall cause Merger Sub use commercially reasonably efforts to, within ten (10) Business Days after the date hereof), commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations of Exchange Act) the Securities and Exchange Commission (the "SEC")Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares Each share of Company Common Stock tendered accepted by Merger Sub pursuant to the Offer are subject shall be exchanged for the right to receive that number of shares of Manpower Common Stock equal to $18.75 divided by the Average Trading Price (rounded to the conditions set forth in Exhibit A. fourth decimal place); provided, however, that if the number of shares so calculated (1) is greater than 0.4497, then such number shall be reduced to 0.4497 (the "Fixed Exchange Rate"), or (2) is less than 0.3680, then such number shall be increased to 0.3680; and provided, further, that if the Average Trading Price is less than $37.80, then Manpower shall have the option, but not the obligation, to issue an additional number of shares of Manpower Common Stock (the "Additional Shares") for each share of Company Common Stock such that the sum of (a) the product of the Fixed Exchange Rate and the Average Trading Price and (b) the product of the Additional Shares and the Average Trading Price shall equal $17.00 (such number of shares of Manpower Common Stock, as adjusted if applicable, and the number of Additional Shares are hereinafter collectively referred to as the "Exchange Rate"). If, prior to 12:00 noon New York time on the first trading day preceding the Appointment Time, Manpower has, by written notice to the Company, elected to exercise its option to issue the Additional Shares, then the Company shall not have the right to terminate this Agreement pursuant to Section 7.1.7. The initial expiration date of the Offer shall be the 20th business day twentieth Business Day following the commencement of the Offer. The obligations of Merger Sub to accept for exchange and exchange the number of shares of Manpower Common Stock for shares of Company Common Stock shall be subject to the condition (the "Minimum Condition") that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn a number of shares of Company Common Stock (including shares of Company Common Stock tendered pursuant to the Tender and Voting Agreement) which, together with the shares of Company Common Stock then owned by Manpower and Merger Sub (if any), immediately prior to acceptance for exchange of shares of Company Common Stock pursuant to the Offer, represents at least a majority of the sum of (i) the total number of shares of Company Common Stock outstanding immediately prior to such acceptance, and (ii) a number of shares of Company Common Stock determined by Manpower up to a maximum of the total number of shares of Company Common Stock issuable upon the exercise or conversion of all options, warrants, rights and convertible securities outstanding on the date hereof (such sum of shares is hereinafter referred to as the "Diluted Share Amount"), and to the other conditions set forth in Annex I hereto. Manpower and Merger Sub expressly reserves reserve the right to waive any condition the conditions to the Offer or modify and to make any change in the terms or conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Merger Sub shall not no change may be made which (iA) reduce decreases the number of shares of Company Common Stock subject to sought in the Offer, (iiB) reduce changes the price per share form or amount of Company Common Stock consideration to be paid pursuant paid, (C) imposes conditions to the OfferOffer in addition to those set forth in Annex I, (iiiD) change changes or waive waives the Minimum Tender Condition (as defined in Exhibit A), add to or any of the conditions set forth in Exhibit A clauses (2), (3), (4), (5) or modify any condition set forth in Exhibit A in any manner adverse (6) of the first paragraph of Annex I, provided, that if the Company delivers to Manpower the Company's written consent to the holders waiver of Company Common Stockclauses (5) and (6) of the first paragraph of Annex I, then Manpower and Merger Sub shall be deemed to have waived clauses (5) and (6) of the first paragraph of Annex I, (ivE) except as provided below in this Section 1.01(a), extend changes the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer (except as set forth in the following two sentences), or (F) makes any other change to any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered terms and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on which is adverse in any scheduled expiration date of material respect to the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment holders of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.Common
Appears in 1 contract
Samples: Merger Agreement (Right Management Consultants Inc)
The Offer. (a) Subject In furtherance of those objectives, the Company is offering to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition “Eligible Employees” (as defined in Exhibit Abelow) an opportunity to tender (that is, surrender) for cancellation “Eligible Restricted Shares” (as defined below) granted to employees of First Albany by rescinding the Restricted Stock Award Agreements pursuant to which they were granted under the First Albany Companies Inc. Restricted Stock Inducement Plan (the “Descap Plan”), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockFirst Albany Companies Inc. 1999 Long-Term Incentive Plan, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered amended and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall restated from time to time (the “1999 Plan”) and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934First Albany Companies Inc. 2001 Long-Term Incentive Plan, as amended and restated from time to time (the "Exchange Act"“2001 Plan”) (the Descap Plan, the 1999 Plan and the 2001 Plan shall be referred to collectively herein as the “Plans”). We are offering to exchange, following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On upon the terms and subject to the conditions set forth herein (the “Offer”), Eligible Restricted Shares that are properly tendered for cancellation in this Offer by an Eligible Employee for Stock Appreciation Rights (the “Stock Appreciation Rights” as defined in the 1999 Plan or the 2001 Plan, respectively). In order to participate in the Offer, an Eligible Employee must tender all, but not less than all, of his or her Eligible Restricted Shares. We will not accept partial tenders. If an Eligible Employee attempts to tender some but not all of his or her Eligible Restricted Shares, the tender will be rejected and such Eligible Employee’s Restricted Shares will remain outstanding in accordance with, and subject to, their current terms. To validly tender Eligible Restricted Shares pursuant to this Offer, an Eligible Employee must, prior to 11:59 p.m., Eastern Daylight Time, on May 9, 2007 (or such later date to which we may extend the Offer, in either case, the “Offer Expiration Date”), and in accordance with the terms of the acceptance letter attached as Exhibit (a)(3) hereto, properly complete, duly execute and deliver to Pxxxxxxx Xxxxxxx-Xxxxx the acceptance letter by internal mail, regular external mail, or a facsimile thereof; provided that, if internal mail is used, you must receive a confirmation of receipt from the Company. Delivery by e-mail will not be accepted. Pxxxxxxx Xxxxxxx-Xxxxx must receive the acceptance letter at 600 Xxxxxxxx, Xxxxxx, Xxx Xxxx, 00000 (facsimile: (000) 000-0000) before the Offer Expiration Date. We currently expect that we will accept all Eligible Restricted Shares tendered (“Tendered Restricted Shares”) in the Offer and this Agreementgrant the Stock Appreciation Rights on the first business day immediately following the Offer Expiration Date (such date, promptly after expiration of the Offer“Grant Date”), Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase provided that all shares of Company Common Stock validly tendered and not withdrawn pursuant the conditions described herein are satisfied. Restricted Shares which are forfeited or cancelled prior to the Offer Expiration Date (including Restricted Shares that Merger Sub is permitted to accept and pay for under applicable law.
(b) On are forfeited as a result of an employee’s termination of employment in accordance with the date of commencement terms of the Offer, Parent applicable Plan) will not be deemed outstanding and Merger Sub shall file with the SEC, and cause to will not be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter Eligible Restricted Shares for purposes of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the this Offer.
Appears in 1 contract
Samples: Offer With Respect to Eligible Restricted Shares (First Albany Companies Inc)
The Offer. (a) Subject to the conditions The obligation of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shallSubsidiary to, and Parent shall Buyer to cause Merger Sub Subsidiary to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock and all Shares tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. The initial expiration date Annex I hereto and to the terms and conditions of this Agreement; provided, however, that Merger Subsidiary shall not, without the Offer shall be Company's written consent, waive the 20th business day following the commencement of the OfferMinimum Condition (as defined in Annex I hereto). Merger Sub Subsidiary expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except ; provided that, without the prior Company's written consent of the Companyconsent, Merger Sub Subsidiary shall not (i) reduce the number of shares of Company Common Stock subject Shares which Merger Subsidiary is offering to purchase in the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockAnnex I hereto, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (viv) otherwise amend or modify the Offer in any manner adverse to the holders of Company Common Stockthe Shares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the on any scheduled expiration date the number of Shares that have been physically tendered and not withdrawn are more than 5O% of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer Shares outstanding on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied a fully diluted basis but fewer less than 90% of the outstanding shares of each class of capital stock of the Company Common Stock have been validly tendered and not withdrawn. Parent and on a fully diluted basis, Merger Sub agree Subsidiary may extend the Offer for up to 10 additional business days from the date that if all of the conditions to the Offer are not satisfied (other than the Minimum Condition) shall first have been satisfied, so long as Merger Subsidiary irrevocably waives the satisfaction of any condition set forth in Annex A which relates to the occurrence of a Material Adverse Effect on the Company (as defined in Section 4.1). Further, Merger Subsidiary may extend the Offer beyond any scheduled expiration date up to the Outside Termination Date (as defined in Section 10.1) if at the initial expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (whichor any extension thereof, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein in clauses (a) and (b) to be satisfied until such conditions Annex I hereto are not satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect Subject to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date terms and conditions of the Offer, then Merger Sub Subsidiary shall, and Buyer shall extend the Offer for seven calendar days; provided that cause Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this AgreementSubsidiary to, pay, as promptly as practicable after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable lawwithdrawn.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Clientlogic Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A hereto shall have occurred or and be existingcontinuing, Purchaser shall, and Parent shall cause Purchaser to, commence the Offer as promptly as reasonably practicable, practicable after the date hereof (but in no event later than six ten (10) business days after the date of the public announcement this Agreement). The obligation of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence Purchaser to accept for payment Securities tendered pursuant to the Offer within shall be subject only to (i) the meaning of the applicable rules and regulations of the Securities and Exchange Commission condition (the "SECMinimum Condition"). The obligations ) that there shall have been validly tendered and not withdrawn prior to the expiration of Merger Sub tothe Offer at least the number of shares of Company Common Stock, shares of Company Series A Preferred Stock and Warrants (determined as if shares of Parent Company Series A Preferred Stock and Warrants have been converted into or exercised for shares of Company Common Stock) that, when added to cause Merger Sub toSecurities already owned by Parent, accept for paymentPurchaser and their subsidiaries, and pay for, any shall constitute two-thirds of the then outstanding shares of Company Common Stock tendered pursuant to on a Fully Diluted Basis and (ii) the Offer are subject to satisfaction or waiver of each of the other conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the OfferAnnex A hereto. Merger Sub Purchaser expressly reserves the right to waive any condition such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made which decreases the Per Share Amount or which reduces the maximum number of Securities to be purchased in the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A which modifies in any manner adverse to the holders of Company Common StockSecurities or adds conditions to the Offer in addition to those set forth in Annex A hereto and that Purchaser shall not, without the consent of the Company, waive or change the Minimum Condition, change the scheduled expiration date of the Offer (iv) except as provided below in this Section 1.01(a), extend the Offer, (vnext sentence) or change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)Purchaser may, without the consent of the Company, : (Ai) extend the Offer for one or in increments of no more periods of time than five (which5) business days each beyond the scheduled expiration date, without which shall initially be 20 business days following the written consent commencement of the CompanyOffer, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedif, if at the scheduled expiration date of the Offer Offer, any of the conditions to Merger SubPurchaser's obligation to purchase shares accept Securities for payment shall not be satisfied or waived, provided that the Purchaser may not extend the Offer pursuant to this clause (i) for more than 10 business days in total if all of Company Common Stock are not satisfied, until such time as such the conditions are set forth in Annex A hereto other than the Financing Condition have been satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.of
Appears in 1 contract
Samples: Merger Agreement (Mohawk Corp)
The Offer. (a) Subject to Not later than the conditions first business day after the date of this Agreement Agreement, Acquiror, Acquisition Subsidiary and provided Xxxxx will make a public announcement of the Offer.
(b) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 7.1 and none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A hereto shall have occurred or be existing, Acquisition Subsidiary shall commence, and Acquiror shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six ten (10) business days after the date of the initial public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, Acquisition Subsidiary’s intention to commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer, which announcement will be made on November 16, 2007. The obligations obligation of Merger Sub to, and of Parent Acquisition Subsidiary to cause Merger Sub to, accept for payment, payment and pay for, any shares of Company Common Stock for Xxxxx Shares tendered pursuant to the Offer are shall be subject only to the satisfaction of the conditions set forth in Exhibit A. The initial Annex A hereto, including the condition that a number of Xxxxx Shares representing that number of Xxxxx Shares which would equal more than fifty percent (50%) of the Xxxxx Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer shall be Offer, and not withdrawn (the 20th business day following the commencement of the Offer“Minimum Condition”). Merger Sub Acquisition Subsidiary expressly reserves the right to waive any condition such condition, to increase the Offer or modify Per Share Amount and to make any other changes in the terms and conditions of the Offer; provided, except however, that, without the prior written consent of the CompanyXxxxx, Merger Sub shall Acquisition Subsidiary will not (i) reduce decrease the number of shares of Company Common Stock subject to the OfferPer Share Amount, (ii) reduce the price per share maximum number of Company Common Stock Xxxxx Shares to be paid pursuant to purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or waive supplement the Minimum Tender Condition (as defined in Exhibit A), add conditions to the conditions Offer set forth in Exhibit Annex A or modify any condition set forth in Exhibit A hereto in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the OfferXxxxx Shares, (v) change extend the form expiration date of consideration payable in the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) otherwise amend make any other change in the terms or conditions of the Offer in any manner which is adverse to the holders of Company Common StockXxxxx Shares. Notwithstanding The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the foregoingterms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Merger Sub may Acquisition Subsidiary shall, and Acquiror shall cause Acquisition Subsidiary to, accept for payment and pay, as promptly as practicable after expiration of the Offer, for all Xxxxx Shares validly tendered and not withdrawn (but the “Acceptance Time”).
(c) On the date of commencement of the Offer, Acquiror and Acquisition Subsidiary shall not be obligated tofile with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the “Schedule TO”), without with respect to the consent Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and the forms of related letters of transmittal (the CompanySchedule TO, (A) extend the Offer for one to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or more periods of time (which, without the written consent of the Companygiven to Xxxxx’x stockholders, shall not exceed ten days per extension) 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 Merger Sub reasonably believes are in complying with the foregoing commitments, Acquiror and Acquisition Subsidiary may rely on the accuracy of any information provided in writing by Xxxxx for inclusion or incorporation by reference into the Offer Documents. Xxxxx, Acquiror and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading in any material respect, and Acquiror and Acquisition Subsidiary shall take all steps necessary to cause the conditions Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Xxxxx Shares, in each case as and to the extent required by applicable Law. Xxxxx and its counsel shall be given the reasonable opportunity to review and comment on the Offer set forth herein Documents prior to be satisfiedthe filing thereof with the SEC. Acquiror and Acquisition Subsidiary shall provide Xxxxx and its counsel with a copy of, and shall consult with Xxxxx regarding any telephonic notification of any oral comments, and shall consult with Xxxxx before responding to any written comments, in each case that Acquiror or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that Acquiror or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its commercially reasonable efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms and conditions hereof, the Offer shall remain open until midnight, Eastern Time, on the date that is twenty (20) business days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of Xxxxx, Acquisition Subsidiary may (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares set forth in Annex A shall not have been satisfied or waived, for one (1) or more periods of Company Common Stock are not satisfiedmore than ten (10) business days each, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period one (1) or more periods if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer, not more than the period or periods required by such rule, regulation, interpretation or position, or (Ciii) extend the Offer on for one (1) or more occasions periods for an aggregate period of not more than ten twenty (20) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of Xxxxx Shares which would equal more than ninety percent (90%) of the issued and outstanding Xxxxx Shares on a fully-diluted basis; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Tender Condition has been satisfied but fewer than 90% and the conditions set forth in paragraphs (a), (b) and (d) in Annex A. Notwithstanding the foregoing, Acquiror and Acquisition Subsidiary may, without the consent of Xxxxx, extend the offer in accordance with Rule 14d-11 of the shares Exchange Act. In addition, the Per Share Amount 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 Xxxxx. If on the initial scheduled expiration date of the Company Common Stock have been validly tendered Offer or any extension thereof, any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), any applicable Law of Germany regulating competition, merger control or exchange controls or any other applicable foreign Laws regulating competition, antitrust, investment or exchange controls has not expired or terminated, Acquisition Subsidiary shall, if requested to do so by Xxxxx, extend the expiration date of the Offer for up to ten (10) business days. In addition, Acquiror and not withdrawn. Parent and Merger Sub Acquisition Subsidiary each agree that if all any of the conditions to the Offer set forth in paragraphs (a) or (b) of Annex A are not satisfied satisfied, including the satisfaction of the Minimum Condition, on any scheduled expiration date of the Offer, then Merger Sub shall from time Acquisition Subsidiary shall, and Acquiror shall, if requested to time and on each such occurrence do so by Xxxxx, cause Acquisition Subsidiary to, extend the Offer one time for a period of time up to ten (which, without the written consent of the Company, shall not exceed ten days per extension10) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar business days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Coley Pharmaceutical Group, Inc.)
The Offer. (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingthis Agreement, as promptly as reasonably practicablepracticable after the date of this Agreement, but in no event later than six business days ten (10) Business Days after the date of the public announcement of this Agreement Agreement, Merger Sub shall, shall (and Parent shall cause Merger Sub to, ) commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) the Offer to purchase any and regulations of all outstanding Shares at a price per Share equal to the Securities and Exchange Commission (the "SEC")Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, purchase, accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Exhibit A. Annex A (the “Offer Conditions”).
(b) The initial expiration date of the Offer shall be the 20th business day twentieth (20th) Business Day following the commencement of the Offer. Merger Sub expressly reserves Offer (determined using Exchange Act Rules 14d-1(g)(3) and 14d-2) (such date being the right initial “Expiration Date,” and any expiration time and date established pursuant to waive any condition to an authorized extension of the Offer as so extended, also an “Expiration Date”). Notwithstanding the foregoing, if, on the initial Expiration Date or modify any subsequent Expiration Date, all of the terms Offer Conditions have not been satisfied or waived (other than any Offer Conditions that by their nature cannot be satisfied until the closing of the Offer, except thatwhich shall be required to be satisfied or waived at the closing of the Offer), then Merger Sub shall, and Parent shall cause Merger Sub to, subject to the rights of the parties under Article 8, extend (and re-extend) the Offer and its Expiration Date beyond the initial Expiration Date or such subsequent Expiration Date until the date all of the Offer Conditions are satisfied or waived (other than any Offer Conditions that by their nature cannot be satisfied until the closing of the Offer, which shall be required to be satisfied or waived at the closing of the Offer); provided that any such extension (i) shall be in increments determined by Merger Sub of not more than ten (10) Business Days and (ii) shall not extend beyond the Walk Away Date. The Offer may not be terminated prior to its Expiration Date (as such Expiration Date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Article 8. In no event shall Merger Sub extend the Offer beyond the date that is five (5) Business Days prior to the Walk Away Date without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stockits sole discretion. Notwithstanding the foregoing, subject to the rights of the parties under Article 8, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (whichOffer, without the written consent of the Company, and Parent shall not exceed ten days per extension) that cause Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer Offer, for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by any other Law.
(Cc) extend the Offer on one Parent shall provide or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and cause to be provided to Merger Sub agree that if all of on a timely basis the conditions funds necessary to the Offer are not satisfied on purchase any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) Shares that Merger Sub reasonably believes is necessary becomes obligated to cause the conditions of the Offer set forth herein purchase pursuant to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the foregoing, Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment and purchase pay for all shares of Company Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer that as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions shall have been satisfied or waived.
(d) Merger Sub may, in its sole discretion (and without any required consent of the Company, but subject to the terms set forth in this Section 1.1(d)), elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act (each a “Subsequent Offering Period”) following the Acceptance Time if (i) Merger Sub shall have complied with all of the conditions of Rule 14d-11 under the Exchange Act and (ii) at the commencement of any Subsequent Offering Period (or extension thereof) the number of Shares owned by Parent, Merger Sub and their respective Subsidiaries (including any Shares beneficially owned by any of the foregoing and including all Shares validly tendered and not properly withdrawn at the Acceptance Time) represent less than 90% of the then outstanding number of Shares; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), Merger Sub shall not be permitted to provide for a Subsequent Offering Period. If immediately following the Acceptance Time, Parent, Merger Sub and their respective Subsidiaries own more than 70% but less than 90% of the Shares outstanding at that time (which shall include (i) shares beneficially owned by Parent, Merger Sub and their respective Subsidiaries, which Shares shall be converted into direct ownership at or prior to the expiration of the Offer by Parent, Merger Sub or their respective Subsidiaries, as the case may be, and (ii) shares validly tendered in the Offer and not properly withdrawn at the Acceptance Time), to the extent requested by the Company, Merger Sub shall provide for, and Parent shall cause Merger Sub to provide for, a Subsequent Offering Period of ten (10) Business Days; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), the Company shall not have the right to request a Subsequent Offering Period; provided, further that the Company shall not have the right to request a Subsequent Offering Period if such Subsequent Offering Period would extend beyond the date that is five (5) Business Days prior to the Walk Away Date without the prior written consent of Parent (which consent may be withheld in its sole discretion). Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered and not properly withdrawn during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered during any Subsequent Offering Period and in any event in compliance with Rule 14d-11(c) promulgated under applicable lawthe Exchange Act.
(be) Parent and Merger Sub expressly reserve the right to waive any of the Offer Conditions, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, do any of the following:
(i) reduce the number of Shares subject to the Offer;
(ii) reduce the Offer Price;
(iii) amend, change or waive the Minimum Tender Condition;
(iv) except as expressly provided in Section 1.1(b), extend or otherwise change the Expiration Date, except (A) as required by applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof) or (B) in connection with an increase of the Offer Price;
(v) change the form of consideration payable in the Offer;
(vi) impose any condition to the Offer other than the Offer Conditions; or
(vii) otherwise amend, modify or supplement any of the Offer Conditions or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of the Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions.
(f) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall (i) contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement and such other information or documents as required by Law (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, being referred to as the "“Offer Documents")”) and (ii) be in form reasonably satisfactory to the Company. The Company shall as promptly as practicable upon request of Parent, provide Parent and Merger Sub with all information concerning the Company that is required to be included in the Offer Documents. Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the requirements of applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the holders of Shares, 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 Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent necessary such that such information shall have become false the Offer Documents do not contain an untrue statement of a material fact or misleading in omit to state any material respectfact required to be stated therein or necessary in order to make the statements therein, and each in light of the circumstances under which they are made, not misleading. 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable Federal U.S. federal securities lawsLaws. The Company and its counsel shall be given afforded a reasonable opportunity to review and comment upon the Offer Documents prior to their filing each time before they are filed with the SEC or dissemination and/or disseminated to holders of Shares (and the stockholders of Company and its counsel shall provide any comments thereon as soon as reasonably practicable, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the CompanyCompany and its counsel). Parent and Merger Sub shall provide to the Company and its counsel in writing copies of any written comments (and orally, or telephonic notification of any oral comments), comments or other communications Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and or other communications, shall consult with the Company and its counsel prior to responding to any such commentscomments or other communications, and shall provide the Company with copies of all written responses and telephonic notification of any oral responses thereto of Parent or Merger Sub or their counsel, provided that Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to participate in the response of Parent and Merger Sub to any such comments or other communications and to provide comments on that response (to which reasonable and good faith consideration shall be given by Parent and Merger Sub).
(cg) Unless this Agreement is terminated pursuant to Section 8.1, neither Parent nor Merger Sub shall provide terminate or withdraw the Offer without the prior written consent of the Company in its sole discretion, except that in the event this Agreement is terminated pursuant to Section 8.1, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, or cause to be provided to any depositary acting on behalf of Merger Sub on a timely basis to return, all tendered Shares to the funds necessary tendering stockholders.
(h) The Offer Price shall be adjusted to purchase reflect fully the effect of any shares reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock that effected by the Company in accordance with the terms and conditions of this Agreement and occurring (or for which a record date is established) after the date of this Agreement and prior to the payment by Merger Sub becomes obligated to purchase pursuant to for the Shares validly tendered and not properly withdrawn in connection with the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 8.01 and none of the events or circumstances set forth in paragraphs (a) through (f) of Exhibit Annex A hereto shall have occurred or be existing, Purchaser agrees to, and Parent agrees to cause Purchaser to, commence the Offer as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six five business days after the first public announcement of the execution hereof. Parent and Purchaser agree that the obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that the number of Shares validly tendered and not withdrawn prior to the expiration of the Offer, combined with the Shares already owned by Parent, Purchaser or any of their affiliates, constitute more than 80% of the outstanding Shares at the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that Parent and Purchaser agree that no change may be made without the consent of the Company which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which extends the expiration date of the public announcement Offer (except that Purchaser may extend the expiration date of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations (a) as required to comply with any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vib) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions times each for an aggregate period of not more than ten business up to 15 days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered (and not withdrawn. Parent and Merger Sub agree that if all to exceed 60 days from the date of commencement) for any reason other than those specified in the immediately preceding clause (a)) or which imposes conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time in addition to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer those set forth herein in Annex A hereto. The Per Share Amount shall, subject to applicable withholding of taxes, be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect net to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offerseller in cash, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition), Purchaser agrees to, and this AgreementParent agrees to cause Purchaser to, pay, as promptly as practicable after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable lawwithdrawn.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Sub shall Purchaser agree that Purchaser will file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the OfferOffer and the other Transactions (as hereinafter defined), which shall have been provided to the Company and to which the Company shall not have reasonably objected. Parent and Purchaser agree that the Schedule 14D-1 will contain or will incorporate by reference an offer to purchase (the "Offer to Purchase") and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule TO and the documents included therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). Each of Parent, Merger Sub Purchaser and the Company shall agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respectmisleading, and each of Parent and Merger Sub shall Purchaser further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Ud Delaware Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 8.1 and none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six five business days after the date of the initial public announcement of this Agreement Merger Sub Purchaser's intention to commence the Offer. The Offer shall, unless extended as provided below, expire 20 business days after the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that at least a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that, without the consent of Company, no change may be made which decreases the price per Share payable in the Offer, which reduces the maximum number of Shares to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto or modifies such conditions, or which changes the form of consideration payable in the Offer. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition), Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn. The Offer may not be extended for more than 20 days beyond its original scheduled expiration date unless any of the conditions to the Offer shall not have been satisfied; provided, however, in the event Purchaser desires to extend the Offer beyond July 31, 1997, in the event the proposed length of the extension is, in the aggregate, more than three days Company shall have the right to consent to such longer extension. Parent shall agrees to cause Merger Sub Purchaser to, commence and Purchaser agrees to use its reasonable best efforts to, consummate the Offer within as soon as legally permissible, subject to its right to extend for 20 additional days as provided above.
(b) As soon as reasonably practicable on the meaning date of commencement of the applicable rules and regulations of Offer, Purchaser shall file with the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule TO and the documents included therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). Each of Company and its counsel shall be given an opportunity to review the Offer Documents prior to their filing with the SEC. Parent, Merger Sub Purchaser and the Company shall agree to correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respectmisleading, and each of Parent and Merger Sub shall Purchaser further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Digex Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI VII hereof and none of the events set forth in paragraphs (a) through (fe) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable, practicable but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock Shares have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, Offer then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided PROVIDED that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b7.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Chiron Corp)
The Offer. (a) Subject to Not later than the conditions first business day after the date of this Agreement Agreement, ACQUIROR, Acquisition Subsidiary and provided OPTA will make a public announcement of the Offer.
(b) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 7.1 and none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A hereto shall have occurred or be existing, Acquisition Subsidiary shall commence, and ACQUIROR shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six five (5) business days after the initial public announcement of Acquisition Subsidiary's intention to commence the Offer. The obligation of Acquisition Subsidiary to accept for payment and pay for OPTA Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Annex A hereto (unless the failure of any such condition was caused by any breach by ACQUIROR or Acquisition Subsidiary of this Agreement in which case Acquisition Subsidiary shall be obligated to accept for payment and pay for OPTA Shares tendered pursuant to the Offer provided that such failure has been waived by OPTA), including the condition that a number of OPTA Shares representing that number of OPTA Shares which would equal more than fifty percent (50%) of the OPTA Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the public announcement Offer (the "Minimum Condition"). Acquisition Subsidiary expressly reserves the right to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of this Agreement Merger Sub the Offer; provided, however, that, without the prior written consent of OPTA, Acquisition Subsidiary will not (i) decrease the Per Share Amount, (ii) reduce the maximum number of OPTA Shares to be purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or supplement the conditions to the Offer set forth in Annex A hereto, (v) extend the expiration date of the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) make any other change in the terms or conditions of the Offer which is adverse to the holders of OPTA Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Acquisition Subsidiary shall, and Parent ACQUIROR shall cause Merger Sub Acquisition Subsidiary to, commence the Offer within the meaning accept for payment and pay, as promptly as practicable after expiration of the applicable rules Offer, for all OPTA Shares validly tendered and regulations not withdrawn.
(c) On the date of commencement of the Offer, ACQUIROR and Acquisition Subsidiary shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the "Schedule TO"), with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the forms of related letters of transmittal (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). The obligations Offer Documents will comply in all material respects with the provisions of Merger Sub toapplicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to OPTA's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ACQUIROR and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading, and of Parent ACQUIROR and Acquisition Subsidiary shall take all steps necessary to cause Merger Sub tothe Schedule TO, accept for paymentas so corrected, to be filed with the SEC and pay forthe other Offer Documents, as so corrected, to be disseminated to holders of OPTA Shares, in each case as and to the extent required by applicable law. OPTA and its counsel shall be given the reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. ACQUIROR and Acquisition Subsidiary shall provide OPTA and its counsel with a copy of any shares written comments or telephonic notification of Company Common Stock tendered pursuant any oral comments ACQUIROR or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer are subject Documents promptly after the receipt thereof. ACQUIROR and its counsel shall provide OPTA and its counsel with a reasonable opportunity to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Offer Documents or this Agreement. In the event that ACQUIROR or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond promptly to such comments and take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms and conditions set forth in Exhibit A. The initial expiration date of hereof, the Offer shall be remain open until midnight, Eastern Time, on the 20th date that is twenty (20) business day following the commencement of the Offer. Merger Sub expressly reserves the right to waive any condition to days after the Offer or modify is commenced (within the terms meaning of Rule 14d-2 under the OfferExchange Act); provided, except thathowever, that without the prior written consent of the CompanyOPTA, Merger Sub shall not Acquisition Subsidiary may (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions set forth in Annex A shall not have been satisfied or waived, for one (1) or more periods (none of which shall exceed ten (10) business days) not to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfiedexceed thirty (30) business days in the aggregate or, if earlier, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period one (1) or more periods, not to exceed thirty (30) business days in the aggregate, if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer, or (Ciii) extend the Offer on one or more occasions (1) occasion for an aggregate period of not more than ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of OPTA Shares which would equal more than ninety percent (90%) of the issued and outstanding OPTA Shares; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Tender Condition has been satisfied but fewer than 90% and the conditions set forth in paragraphs (a) or (d) in Annex A. If on the initial scheduled expiration date of the shares Offer or any extension thereof, any applicable waiting period under any applicable foreign laws regulating competition, antitrust, investment or exchange controls has not expired or terminated prior to the expiration of the Company Common Stock have been validly tendered Offer (the "Foreign Antitrust Condition"), Acquisition Subsidiary shall, if requested to do so by OPTA, extend the expiration date of the Offer until a date not later than January 15, 2003 and not withdrawnACQUIROR shall use its best efforts to obtain all permits, authorizations, consents, expiration or termination of waiting periods, and approvals as may be required by any Governmental Entity. Parent In addition, ACQUIROR and Merger Sub Acquisition Subsidiary each agree that if all of the conditions to the Offer set forth in Annex A are not satisfied satisfied, including the satisfaction of the Minimum Condition, on any scheduled expiration date of the Offer, then Merger Sub Acquisition Subsidiary shall, and ACQUIROR shall from time to time and on each such occurrence cause Acquisition Subsidiary to, extend the Offer for a period one (1) or more periods of time not less than ten (which, without the written consent of the Company, shall not exceed ten 10) business days per extension) that Merger Sub reasonably believes is necessary if requested to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waiveddo so by OPTA, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel OPTA shall be given reasonable opportunity entitled to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments make only three (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of 3) such comments and shall consult with the Company and its counsel prior to responding to any such commentsrequests.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions The obligation of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shallsidiary to, and Parent shall Buyer to cause Merger Sub Subsidiary to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock and all Shares tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. The initial expiration date Annex I hereto and to the terms and conditions of this Agreement; provided, however, that Merger Subsidiary shall not, without the Offer shall be Company's written consent, waive the 20th business day following the commencement of the OfferMinimum Condition (as defined in Annex I hereto). Merger Sub Subsid iary expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except ; provided that, without the prior Company's written consent of the Companyconsent, Merger Sub Subsidiary shall not (i) reduce the number num ber of shares of Company Common Stock subject Shares which Merger Subsidiary is offering to purchase in the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockAnnex I hereto, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (viv) otherwise amend or modify the Offer in any manner adverse to the holders of Company Common Stockthe Shares. Notwithstanding Not withstanding the foregoing, Merger Sub may (but shall if on any scheduled expira tion date the number of Shares that have been physically tendered and not be obligated to), without the consent withdrawn are more than 50% of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer Shares outstanding on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied a fully diluted basis but fewer less than 90% of the outstanding shares of each class of capital stock of the Company Common Stock have been validly tendered and not withdrawn. Parent and on a fully diluted basis, Merger Sub agree Subsidiary may extend the Offer for up to 10 additional business days from the date that if all of the conditions to the Offer are not satisfied (other than the Minimum Condition) shall first have been satisfied, so long as Merger Subsidiary irrevocably waives the satisfaction of any condition set forth in Annex A which relates to the occurrence of a Material Adverse Effect on the Company (as defined in Section 4.1). Further, Merger Subsidiary may extend the Offer beyond any scheduled expiration date up to the Outside Termination Date (as defined in Section 10.1) if at the initial expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (whichor any extension thereof, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein in clauses (a) and (b) to be satisfied until such conditions Annex I hereto are not satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect Subject to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date terms and conditions of the Offer, then Merger Sub Subsidiary shall, and Buyer shall extend the Offer for seven calendar days; provided that cause Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this AgreementSubsidiary to, pay, as promptly as practicable after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable lawwithdrawn.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto nothing shall have occurred or be existing, as promptly as reasonably practicable, but which would result in no event later than six business days after the date a failure to satisfy any of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration ANNEX I hereto, Parent shall cause the Purchaser to and the Purchaser shall, as soon as practicable after the date of hereof, and in any event not later than five (5) business days after the day on which the Purchaser's intention to make the Offer shall be is announced commence (within the 20th business day following the commencement meaning of the Offer. 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 (iRule 14d-2(a) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer for all of the outstanding Shares at the Per Share Amount. Subject to the Minimum Condition as defined in ANNEX I and subject only to the other conditions set forth in ANNEX I, following its acceptance for payment the Purchaser shall consummate the Offer as soon as legally permissible. Purchaser expressly reserves the right to waive any such condition or to increase the Per Share Amount or, subject to the provisions of shares this Section 1.1, to make other changes in the terms and conditions of Company Common Stock the Offer. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the Minimum Condition, and no other conditions except those set forth in ANNEX I hereto, and shall not be amended with respect to any provision thereof set forth in such Annex or the Minimum Condition, with respect to a reduction in the price or change in the form of consideration to be paid in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 , or with respect to an extension of the Offer (except as provided in this Section 1.1) without the consent of the Company's San Diego facility has not been consummated ; provided, however, that Purchaser may extend the expiration date (x) in its sole discretion from time to time, if on the initial scheduled or prior to any scheduled extended expiration date of the OfferOffer the Minimum Condition has not been satisfied, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions or any of the Offer and this Agreementother conditions set forth in ANNEX I shall not have been satisfied or waived, promptly after until such time as such conditions are satisfied or waived; provided, however, that unless agreed to by the Company, any extended expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn date pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
this clause (bx) On may not be later than ninety (90) days from the date of commencement of the Offer, Parent and Merger Sub shall file with or one hundred twenty (120) days from such date if within such ninety (90) day period a tender offer for at least 20% of the SEC, and cause to be disseminated outstanding Shares is commenced by any person who is not an affiliate (as defined under the rules promulgated pursuant to the Company's stockholdersSecurities Act of 1933) of Parent or Purchaser (an "Intervening Tender Offer"), as and or (y) for a period not to exceed ten (10) business days, notwithstanding that all conditions to the extent required by applicable Federal securities lawsOffer are satisfied as of such expiration date of the Offer, a Tender if, immediately prior to the expiration date of the Offer Statement on Schedule TO with respect (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer, which shall contain an offer together with the Shares subject to purchase the Option Agreements, without duplication, equal less than 90% of the outstanding Shares and a related letter Purchaser expressly irrevocably waives any condition (other than the Minimum Condition) that subsequently may not be satisfied during such extension of transmittal the Offer, or (z) for any period required by any rule, regulation, interpretation or position of the Securities and summary advertisement Exchange Commission (such Schedule TO and the documents included therein "Commission") or the staff thereof applicable to the Offer. Without limiting the right of Purchaser to extend the Offer pursuant to which the Offer will be madeprovisions of this Section 1.1, together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to event that (i) the extent that such information Minimum Condition shall not have become false been satisfied or misleading (ii) the conditions set forth in ANNEX I shall not have been satisfied or waived at the scheduled or any material respectextended expiration date of the Offer, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement at the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders request of the Company, the Purchaser shall, and Parent shall cause Purchaser to, extend the expiration date of the Offer in increments of five (5) business days each until the earliest to occur of (x) the satisfaction or waiver of the Minimum Condition or such other condition, (y) the termination of this Agreement in accordance with its terms, and (z) ninety (90) days from commencement of the Offer or one hundred twenty (120) days from such date in the event of an Intervening Tender Offer (unless extended by agreement of the parties). Parent and Merger Sub shall provide The Purchaser agrees to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect pay for all Shares tendered pursuant to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) 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 it is obligated to purchase pursuant to the Offeras promptly as practicable.
Appears in 1 contract
The Offer. (a) Subject to the conditions terms of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable, practicable (but in no event later than six business days five Business Days) after the date of the public announcement of this Agreement Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the Pending Offer within to reflect the meaning execution, terms and conditions of this Agreement. The date on which the applicable rules and regulations of Pending Offer is amended, which shall be the Securities and Exchange Commission (date hereof, is referred to in this Agreement as the "SEC"“Offer Amendment Date”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. A (the “Offer Conditions”). The initial Offer shall expire at midnight, New York City time, on the 10th Business Day following the Offer Amendment Date (such time or such subsequent time to which the expiration date of the Offer shall be is extended in accordance with the 20th business day following terms of this Agreement, the commencement of the Offer“Expiration Date”). Merger Sub expressly reserves the right right, in its sole discretion, to waive waive, in whole or in part, any condition to the Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change change, modify or waive the Minimum Tender Condition; provided that, Parent may, at any time in its sole discretion and without the consent of the Company, amend the Minimum Tender Condition such that the determination of the number of outstanding shares of Company Common Stock on a fully diluted basis shall exclude all options and convertible securities with an exercise price or conversion price greater than the Offer Price, (as defined in Exhibit A), iv) add to the conditions set forth in Exhibit A or modify or change any condition set forth Offer Condition in Exhibit A in any a manner adverse to the any holders of Company Common Stock, (ivv) except as otherwise provided below in this Section 1.01(a1.1(a), extend or otherwise change the Expiration Date of the Offer, (vvi) change the form of consideration payable in the Offer or (vivii) otherwise amend amend, modify or supplement any of the terms of the Offer in any a manner adverse to the any holders of Company Common StockStock in their capacity as such. Notwithstanding anything in this Agreement to the foregoingcontrary, Merger Sub may (but shall not be obligated to)may, in its sole discretion, without the consent of the Company, (A) without limiting Parent’s or Merger Sub’s obligations under the following sentence, extend the Offer for on one or more periods occasions, in consecutive increments of time up to ten Business Days (which, without or such longer period as the written consent of the Company, shall not exceed ten days per extensionparties hereto may agree) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedeach, if at the on any then-scheduled expiration date Expiration Date of the Offer any of the conditions Offer Conditions shall not have been satisfied or, to the extent waivable by Parent or Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, and (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. Parent and Merger Sub agree that, to the extent requested in writing by the Company prior to any then-scheduled Expiration Date of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to) (A) if any of the Offer Conditions set forth in paragraph (a) or (Cb) of clause (ii) of Exhibit A shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived, and provided that it is reasonably expected that such condition or conditions shall be satisfied prior to the Termination Date, extend the Offer on one or more occasions occasions, in consecutive increments of up to ten Business Days each (or such longer period as the parties hereto may agree), until such time as such Offer Conditions are satisfied (but not beyond the Termination Date) and (B) if any of the Minimum Tender Condition or the Offer Conditions set forth in paragraph (d) or (e) of clause (ii) of Exhibit A shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived on such then-scheduled Expiration Date, but all the other Offer Conditions set forth in Exhibit A shall be satisfied on such then-scheduled Expiration Date, extend the Offer on one or more occasions, in consecutive increments of up to five Business Days (or such longer period as the parties hereto may agree) each, for an aggregate period of time of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree 20 Business Days; provided, however, that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extensioni) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Termination Date (as defined in Section 6.01(b)). or at any time Parent or Merger Sub may, with the written consent of the Company, elect is permitted to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended terminate this Agreement pursuant to Article VIII and (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that ii) if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has Minimum Tender Condition is not been consummated on satisfied, but all other Offer Conditions are satisfied or prior to any scheduled expiration date of the Offerwaived, then Merger Sub shall only be obligated to extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation one additional period not to so extend the Offer more exceed and not less than once. On ten (10) Business Days.
(b) Subject to the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for payment and purchase (subject to any withholding of Tax pursuant to Section 1.1(e)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the Expiration Date of the Offer. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer is permitted referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right, in its sole discretion, to elect to provide for a “subsequent offering period” in accordance with Rule 14d-11 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”) following the Offer Closing, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall accept for payment and pay for under applicable lawall shares validly tendered during such subsequent offering period. The Offer may not be terminated prior to its Expiration Date, unless this Agreement is validly terminated in accordance with Article VIII. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.1, prior to the acceptance for payment of Company Common Stock tendered in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the registered holders thereof.
(bc) On As promptly as reasonably practicable following the date of commencement of the OfferOffer Amendment Date, Parent and Merger Sub shall file with the SEC, and cause SEC an amendment to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a its Tender Offer Statement on Schedule TO filed originally on May 10, 2012 under cover of Schedule TO with respect to the Pending Offer, which shall reflect the execution, terms and conditions of this Agreement and contain an a supplement to the offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by or deemed advisable under applicable Federal securities lawsLaws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, and shall use its counsel reasonable best efforts to give the Company the opportunity to participate in any substantive telephonic communications with the staff of the SEC related thereto. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall be given provide the Company a reasonable opportunity to review and comment upon the on such Offer Documents prior to their filing with or response (including the SEC or dissemination to the stockholders of the Company. proposed final version thereof), and Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding give reasonable consideration to any such comments.
(cd) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(e) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer, the Merger or otherwise pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable Law. To the extent that amounts are so withheld and paid over by Merger Sub to the appropriate Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Merger Sub.
(f) For purposes of this Agreement (including exercise of the Top-Up Option) and the Offer, unless otherwise mutually agreed to by the Company and Parent, any shares of Company Common Stock subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer unless and until the shares of Company Common Stock underlying such notices of guaranteed delivery have been delivered to Merger Sub.
Appears in 1 contract
The Offer. (a) Subject to Not later than the conditions first business day after the date of this Agreement Agreement, Acquiror, Acquisition Subsidiary and provided Cxxxx will make a public announcement of the Offer.
(b) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 7.1 and none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A hereto shall have occurred or be existing, Acquisition Subsidiary shall commence, and Acquiror shall cause Acquisition Subsidiary to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six ten (10) business days after the date of the initial public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub to, Acquisition Subsidiary’s intention to commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer, which announcement will be made on November 16, 2007. The obligations obligation of Merger Sub to, and of Parent Acquisition Subsidiary to cause Merger Sub to, accept for payment, payment and pay for, any shares of Company Common Stock for Cxxxx Shares tendered pursuant to the Offer are shall be subject only to the satisfaction of the conditions set forth in Exhibit A. The initial Annex A hereto, including the condition that a number of Cxxxx Shares representing that number of Cxxxx Shares which would equal more than fifty percent (50%) of the Cxxxx Shares then issued and outstanding on a fully-diluted basis shall have been validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer shall be Offer, and not withdrawn (the 20th business day following the commencement of the Offer“Minimum Condition”). Merger Sub Acquisition Subsidiary expressly reserves the right to waive any condition such condition, to increase the Offer or modify Per Share Amount and to make any other changes in the terms and conditions of the Offer; provided, except however, that, without the prior written consent of the CompanyCxxxx, Merger Sub shall Acquisition Subsidiary will not (i) reduce decrease the number of shares of Company Common Stock subject to the OfferPer Share Amount, (ii) reduce the price per share maximum number of Company Common Stock Cxxxx Shares to be paid pursuant to purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv) add to, modify or waive supplement the Minimum Tender Condition (as defined in Exhibit A), add conditions to the conditions Offer set forth in Exhibit Annex A or modify any condition set forth in Exhibit A hereto in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the OfferCxxxx Shares, (v) change extend the form expiration date of consideration payable in the Offer beyond the twenty (20) business days following the commencement thereof, except as expressly provided herein, or (vi) otherwise amend make any other change in the terms or conditions of the Offer in any manner which is adverse to the holders of Company Common StockCxxxx Shares. Notwithstanding The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the foregoingterms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer, Merger Sub may Acquisition Subsidiary shall, and Acquiror shall cause Acquisition Subsidiary to, accept for payment and pay, as promptly as practicable after expiration of the Offer, for all Cxxxx Shares validly tendered and not withdrawn (but the “Acceptance Time”).
(c) On the date of commencement of the Offer, Acquiror and Acquisition Subsidiary shall not be obligated tofile with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO, including all exhibits thereto (together with all amendments and supplements thereto, the “Schedule TO”), without with respect to the consent Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and the forms of related letters of transmittal (the CompanySchedule TO, (A) extend the Offer for one to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or more periods of time (which, without the written consent of the Companygiven to Cxxxx’x stockholders, shall not exceed ten days per extension) 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 Merger Sub reasonably believes are in complying with the foregoing commitments, Acquiror and Acquisition Subsidiary may rely on the accuracy of any information provided in writing by Cxxxx for inclusion or incorporation by reference into the Offer Documents. Cxxxx, Acquiror and Acquisition Subsidiary shall correct promptly any information provided by any of them for use in the Offer Documents which shall become false or misleading in any material respect, and Acquiror and Acquisition Subsidiary shall take all steps necessary to cause the conditions Schedule TO, as so corrected, to be filed with the SEC and the other Offer Documents, as so corrected, to be disseminated to holders of Cxxxx Shares, in each case as and to the extent required by applicable Law. Cxxxx and its counsel shall be given the reasonable opportunity to review and comment on the Offer set forth herein Documents prior to be satisfiedthe filing thereof with the SEC. Acquiror and Acquisition Subsidiary shall provide Cxxxx and its counsel with a copy of, and shall consult with Cxxxx regarding any telephonic notification of any oral comments, and shall consult with Cxxxx before responding to any written comments, in each case that Acquiror or Acquisition Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that Acquiror or Acquisition Subsidiary receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its commercially reasonable efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(d) Subject to the terms and conditions hereof, the Offer shall remain open until midnight, Eastern Time, on the date that is twenty (20) business days after the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act); provided, however, that without the prior written consent of Cxxxx, Acquisition Subsidiary may (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares set forth in Annex A shall not have been satisfied or waived, for one (1) or more periods of Company Common Stock are not satisfiedmore than ten (10) business days each, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period one (1) or more periods if required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer Offer, not more than the period or periods required by such rule, regulation, interpretation or position, or (Ciii) extend the Offer on for one (1) or more occasions periods for an aggregate period of not more than ten twenty (20) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on such expiration date, there shall not have been tendered that number of Cxxxx Shares which would equal more than ninety percent (90%) of the issued and outstanding Cxxxx Shares on a fully-diluted basis; provided, however, that if Acquisition Subsidiary shall extend the Offer pursuant to this clause (iii), Acquisition Subsidiary shall waive during such extension all conditions set forth in Annex A other than the Minimum Tender Condition has been satisfied but fewer than 90% and the conditions set forth in paragraphs (a), (b) and (d) in Annex A. Notwithstanding the foregoing, Acquiror and Acquisition Subsidiary may, without the consent of Cxxxx, extend the offer in accordance with Rule 14d-11 of the shares Exchange Act. In addition, the Per Share Amount 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 Cxxxx. If on the initial scheduled expiration date of the Company Common Stock have been validly tendered Offer or any extension thereof, any applicable waiting period under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), any applicable Law of Germany regulating competition, merger control or exchange controls or any other applicable foreign Laws regulating competition, antitrust, investment or exchange controls has not expired or terminated, Acquisition Subsidiary shall, if requested to do so by Cxxxx, extend the expiration date of the Offer for up to ten (10) business days. In addition, Acquiror and not withdrawn. Parent and Merger Sub Acquisition Subsidiary each agree that if all any of the conditions to the Offer set forth in paragraphs (a) or (b) of Annex A are not satisfied satisfied, including the satisfaction of the Minimum Condition, on any scheduled expiration date of the Offer, then Merger Sub shall from time Acquisition Subsidiary shall, and Acquiror shall, if requested to time and on each such occurrence do so by Cxxxx, cause Acquisition Subsidiary to, extend the Offer one time for a period of time up to ten (which, without the written consent of the Company, shall not exceed ten days per extension10) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar business days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Pfizer Inc)
The Offer. (a) Subject On the terms and subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable, practicable but in no event later than six business days after the date of the public announcement of this Agreement July 15, 2011, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SEC"“Exchange Act”). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject only 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. A.
(i) 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 (iA) reduce the number of shares of Company Common Stock Shares subject to the Offer or sought to be purchased in the Offer, (iiB) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iiiC) change amend or waive the Minimum Tender Condition Condition, (as defined in Exhibit A), D) add to or impose conditions to the Offer other than the conditions set forth in Exhibit A attached hereto or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stockattached hereto, (ivE) extend the expiration date of the Offer (except as provided below in this accordance with Section 1.01(a1.1(a)(ii) below), extend the Offer, (vF) change the form of consideration payable in the Offer or (viG) otherwise amend or modify the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoingShares; provided, however, with respect to clause (C), that Merger Sub shall have the right to increase the Minimum Tender Condition, but only to the extent necessary to ensure that following an exercise of the Top-Up Option and purchase of the Top-Up Shares, Merger Sub may shall have purchased one Share more than 90% of the outstanding Shares on a fully-diluted basis.
(but ii) The Offer shall not initially be obligated toscheduled to expire at 5 p.m., Atlanta, Georgia time, on August 18, 2011 (the “Initial Offer Expiration Date”), without provided, however, if at the consent Initial Offer Expiration Date, any condition to the Offer is not satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for up to ten (10) Business Days (in increments of at least five (5) Business Days). Thereafter, if at any then scheduled expiration of the CompanyOffer, any condition to the Offer is not satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties may agree) each. In addition, (A) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for on one or more periods of time (which, without occasions for the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any minimum period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer or Offer; and (CB) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if occasion upon the Minimum Tender Condition has been satisfied but fewer than 90% of the shares request of the Company Common Stock have been validly tendered and for a period of time not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on exceed ten (10) Business Days if, within ten (10) Business Days before any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for Company receives an Acquisition Proposal or a period Change of time (whichRecommendation occurs; provided, without the written consent of the Companyhowever, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Outside Date (as defined in Section 6.01(b)). Merger Sub may, with and such extension shall be subject to the written consent of the Company, elect right to provide a subsequent offering period for terminate the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended Section 1.1(a)(iv).
(the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. iii) On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase pay for (subject to any applicable Tax withholding pursuant to Section 4.2(g)) all shares of Company Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer that as soon as practicable after the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 1.1(a) and in compliance with applicable Laws) and in any event in compliance with Rule 14e-1(c) under the Exchange Act. The date of acceptance for payment of Shares pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”.
(iv) If at any then-scheduled expiration of the Offer any condition to the Offer shall not have been satisfied or waived and the Outside Date shall have occurred (the “Offer Determination Date”), then Merger Sub may irrevocably and unconditionally terminate the Offer. In addition, the Company shall have the right, exercisable by delivering written notice to Parent and Merger Sub at any time from and after the Offer Determination Date to cause Merger Sub to, and upon receipt of such written notice, Merger Sub shall, and Parent shall cause Merger Sub to, irrevocably and unconditionally terminate the Offer at the then-scheduled expiration date of the Offer following the receipt of such notice from the Company (delivered no less than one (1) Business Day prior to the then-scheduled expiration date of the Offer). The termination of the Offer pursuant to this Section 1.1(a)(iv) is permitted referred to accept in this Agreement as the “Offer Termination”, and pay the date on which the Offer Termination occurs is referred to in this Agreement as the “Offer Termination Date”. Notwithstanding anything to the contrary in this Section 1.1(a)(iv), if this Agreement is terminated pursuant to Article IX, then Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer and in any event shall not acquire any Shares pursuant thereto. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Article IX, 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. The parties acknowledge and agree that the Offer Termination shall not give rise to a right of termination of this Agreement except to the extent expressly provided for under applicable lawin Article IX and that, absent any such termination of this Agreement, the obligations of the parties hereunder other than those related to the Offer shall continue to remain in effect, including those obligations with respect to the Merger.
(v) If on or after the date hereof, the Company changes the number of Shares or securities convertible or exchangeable into or exercisable for Shares issued and outstanding prior to the Acceptance Time as a result of a reclassification, stock split (including a reverse stock split), stock dividend or stock distribution, recapitalization, merger, issuer tender or exchange offer, or other similar transaction, the Offer Price shall be equitably adjusted to reflect such change and as so adjusted shall, from and after the date of such event, be the Offer Price.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, 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 and such other ancillary documents pursuant to which the Offer will be made (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments theretothereto and such other ancillary documents, the "“Offer Documents"”). The Offer Documents will contain all information that is required to be included therein in accordance with the Exchange Act, and the rules and regulations thereunder and any other applicable Laws. Parent and Merger Sub shall cause the Offer Documents to comply as to form in all material respects with the requirements of all applicable Laws, and Parent and Merger Sub will take all steps necessary to cause the Offer Documents to be disseminated to the Company Shareholders in accordance with this Agreement and with all applicable Laws. Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersCompany Shareholders, in each case as and to the extent required by or deemed advisable under all applicable Federal securities lawsLaws. The Company and its counsel shall be given reasonable the opportunity to review and comment upon on the Offer Documents and any supplements or amendments thereto prior to their the filing thereof with the SEC, and Parent and Merger Sub shall give due consideration to any such comments proposed by the Company or its counsel. In the event that Parent or Merger Sub receives any comments from the SEC or dissemination its staff with respect to the stockholders of Offer Documents, each shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the Companyissues raised therein. Parent and Merger Sub shall (A) provide to the Company and its counsel in writing with any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly promptly, but in no event later than twenty-four (24) hours, after the receipt of such comments and shall consult with comments, (B) provide the Company and its counsel prior with copies of all correspondence between Parent, Merger Sub or their counsel, on the one hand, and the SEC (or the staff of the SEC), on the other hand, (C) give the Company and its counsel a reasonable opportunity to responding participate in the response of Parent and Merger Sub to those comments and to provide comments on any response, and (D) give due consideration to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase and pay for any shares of Company Common Stock and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the OfferOffer and shall cause Merger Sub to fulfill all of Merger Sub’s covenants, agreements and obligations under the Offer and this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Immucor Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI VII hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A hereto (the "Offer Conditions") shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six business days after within five Business Days of the date of the public announcement of this Agreement hereof, Merger Sub shall, and Parent shall cause Merger Sub to, will commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission a tender offer (the "SECOffer"). ) for all of the outstanding shares of common stock, par value $0.01 per share, of the Company (the "Company Common Stock") at a price per share of the Company Common Stock of U.S. $25.00 net to the Seller in cash (such price, or any higher price paid in the Offer, the "Price Per Share") upon the terms and conditions set forth in this Agreement, including Annex A hereto.
(b) The obligations obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, purchase and pay for, for any shares of Company Common Stock tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. The initial expiration date satisfaction or waiver of the Offer shall be Conditions, including the 20th business day following the commencement Offer Condition that at least that number of shares of Company Common Stock equivalent to a majority of the Offertotal issued and outstanding shares of Company Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"). Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except thatwill not, without the prior written consent of the Company, Merger Sub shall not Company (such consent to be authorized by the Company Board): (i) reduce waive the Minimum Condition, (ii) decrease the amount or change the form of consideration payable in the Offer, (iii) decrease the number of shares of Company Common Stock subject to sought in the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend impose additional conditions to the Offer, (v) change the form any Offer Condition or amend any other term of consideration payable in the Offer if any such change or (vi) otherwise amend the Offer amendment would be adverse in any manner adverse respect to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. (other than Parent and or Merger Sub agree that Sub) or (vi) except as provided below, extend the Offer if all of the conditions Offer Conditions have been satisfied. Subject to the Offer are not satisfied on any scheduled expiration date of the Offerterms and conditions hereof, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time shall remain open until midnight, New York City time, on the date that is twenty (which, without the written consent of the Company, shall not exceed ten days per extension20) that Merger Sub reasonably believes is necessary to cause the conditions of Business Days after the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations is commenced (within the meaning of Rule 14d-2 under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act")); provided, following its acceptance however, that without the consent of the Company Board, Merger Sub may (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 for payment one (1) or more periods (none of which shall exceed ten (10) Business Days) until such time as such conditions are satisfied or waived, (y) extend the Offer for such period as may be required by any rule, regulation, interpretation or position of the Securities and Exchange Commission ("SEC") or the staff thereof applicable to the Offer or (z) extend the Offer for one (1) or more periods (each such period to be for not more than three (3) Business Days and such extensions to be for an aggregate period of not more than ten (10) Business Days beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) of this sentence) if on such expiration date the Offer Conditions shall have been satisfied or waived but there shall not have been tendered that number of shares of Company Common Stock in which would equal more than ninety percent (90%) of the Offerissued and outstanding shares of Company Common Stock. Parent and Merger Sub agree agrees that if all of the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has Offer Conditions are not been consummated satisfied on or prior to any scheduled expiration date of the Offer, then then, Merger Sub shall extend the Offer for seven calendar daysone or more periods of not more than ten (10) Business Days each if requested to do so by the Company; provided that Merger Sub shall have no obligation not be required to so extend the Offer more than oncebeyond the Outside Date or, if earlier, the date of termination of this Agreement in accordance with the terms hereof. On the terms of the Offer and subject to the conditions of the Offer Conditions and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept pay for payment and purchase all shares of Company Common Stock Stock, validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 8.1 hereof, and (ii) none of the events set forth in paragraphs (a) through (f) of Exhibit A Annex I hereto shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub toas promptly as practicable after the date hereof, but no later than December 4, 2001, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer. The obligations of Each Share accepted by Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject shall be exchanged for the right to receive that number of fully paid and nonassessable shares of Parent Common Stock equal to the conditions set forth Exchange Ratio, plus the right to receive cash in Exhibit A. lieu of fractional Shares, if any. For purposes of this Agreement, the term "EXCHANGE RATIO" shall mean the quotient obtained by dividing the Company Stock Value by the Average Parent Post-Signing Trading Price; provided that, if the quotient obtained by dividing the Company Stock Value by the Average Parent Post-Signing Trading Price is greater than the quotient obtained by dividing the Company Stock Value by the Adjusted Average Parent Pre-Signing Trading Price, then the term "EXCHANGE RATIO" shall mean the quotient obtained by dividing the Company Stock Value by the Adjusted Average Parent Pre-Signing Trading Price. The initial expiration date of the Offer shall be the 20th twentieth business day following the commencement of the Offer. The Offer shall be subject to (A) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Sub (if any), represents a number equal to at least the sum of (x) a majority of the total number of Shares and (y) the total number of shares of Company Common Stock issuable upon exercise of Company Options, each as outstanding immediately prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) (the condition referred to in this sentence being referred to as the "MINIMUM CONDITION"); for the avoidance of doubt, it being understood that Shares tendered into the Offer pursuant to a Notice of Guaranteed Delivery shall be counted in the computation of the Minimum Condition only to the extent the stock certificates for such Shares are actually delivered to the Exchange Agent (or, if the Shares are delivered to the Exchange Agent via book-entry, credited to the Exchange Agent's account with The Depository Trust Company) prior to computing the Minimum Condition at the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)), and (B) each of the other conditions set forth in Annex I hereto. Parent and Merger Sub expressly reserves reserve the right to waive any condition one or more conditions to the Offer or modify and to make any change in the terms or conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Merger Sub shall not no change may be made which (i) reduce decreases the number of shares of Company Common Stock subject to Shares sought in the Offer, (ii) reduce changes the price per share form or amount of Company Common Stock consideration to be paid pursuant to the Offerpaid, (iii) change imposes conditions to the Offer in addition to those set forth in Annex I, (iv) changes or waive waives the Minimum Tender Condition (as defined in Exhibit A), add to or any of the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A Annex I in any manner which is adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the OfferShares, (v) change extends the form of consideration payable Offer (except as set forth in the Offer following two sentences), or (vi) otherwise amend makes any other change to any of the terms and conditions to the Offer in any manner which is adverse to the holders of Company Common StockShares. Notwithstanding Subject to the foregoingterms of the Offer and this Agreement and the satisfaction (or waiver by Parent to the extent permitted by this Agreement) of the conditions set forth in Annex I to the Offer, Merger Sub may (but shall accept for payment all Shares validly tendered and not be obligated to), without withdrawn pursuant to the consent Offer as soon as practicable after the applicable expiration date of the CompanyOffer (as it may be extended in accordance with the requirements of this Section 1.1(a)) and shall pay for all such Shares promptly after acceptance; provided, however, that (A) Merger Sub shall extend the Offer for one or more successive extension periods (up to the Termination Date) not in excess of time (which, without the written consent of the Company, shall not exceed ten business days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedextension period if, if at the scheduled expiration date of the Offer or any extension thereof, any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are the Offer shall not satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived, and (B) Merger Sub may 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 (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by the applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to rules and regulations of the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements SEC or amendments thereto, the "Offer Documents")NASD. Each of ParentIn addition, Merger Sub and the Company shall promptly correct any information provided by it for use in may extend the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt acceptance of such comments and shall consult with Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Company and its counsel prior to responding to any such commentsExchange Act.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Exelixis Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall has not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingSection 10.01, as promptly as reasonably practicable, practicable but in no event later than six business days five (5) Business Days after the date of the public announcement of this Agreement Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within in accordance with the meaning Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the terms and conditions of this Agreement.
(b) The Offer shall initially expire at 12:00 midnight, New York City time, on the twentieth (20th) Business Day following the date of the applicable rules commencement of the Offer. If, as of the initial expiration date of the Offer or any extension thereof in accordance with this Section 2.01(b), any of the conditions set forth in Exhibit A are not satisfied, or waived by Parent (in its sole discretion and regulations to the extent permitted under this Agreement), then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one or more additional ten (10) Business Day periods until the earlier of (i) the date on which the conditions set forth in Exhibit A are satisfied, or waived by Parent (in its sole discretion and to the extent permitted under this Agreement) or (ii) the date on which this Agreement is terminated in accordance with Section 10.01. In addition, Merger Sub may, and Parent may cause Merger Sub to, without the consent of the Company and in its sole discretion, extend the Offer (i) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"). ”) or the staff thereof or the NYSE Amex LLC (“Amex”) applicable to the Offer and (ii) after acceptance for payment of shares of Company Common Stock tendered pursuant to the Offer, for a further period of time not to exceed twenty (20) Business Days by means of a subsequent offering period pursuant to Rule 14d-11 under the Exchange Act.
(c) The obligations of Merger Sub to, and obligation of Parent to cause Merger Sub to, to accept for payment, payment and pay for, for any shares of Company Common Stock tendered pursuant to the Offer are shall be subject to the satisfaction of each of the conditions set forth in Exhibit A. A (any of which may be waived by the Buyer Parties in their sole discretion, except that the Minimum Tender Condition may not be waived) and to the other conditions in this Agreement. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer. Merger Sub Buyer Parties expressly reserves reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, that without the prior written consent of the Company, Merger Sub the Buyer Parties shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockA, (iv) except as provided below in this Section 1.01(a2.01(b), extend the Offer, (v) change the form of consideration payable in the Offer Offer, or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding Stock or that would individually or in the foregoingaggregate, Merger Sub may (but shall not reasonably be obligated to), without expected to prevent or materially delay the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions consummation of the Offer set forth herein to be satisfiedor prevent, if at materially delay or impair the scheduled expiration date ability of the Offer any Buyer Parties to consummate the Offer, the Merger or the other transactions contemplated by this Agreement. Nothing contained in this Section 2.01(c) (but otherwise subject to the terms and conditions of this Agreement) shall limit or restrict the conditions ability of Parent to cause Merger Sub's obligation , and for Merger Sub, to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) increase the Offer Price and in connection therewith to extend the period of time during which the Offer remains open for any period acceptance as required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to or of Amex; provided, however, that any such increase in the Offer or Price shall be in increments of at least $0.05. If immediately following the Acceptance Time (C) extend the Offer on one or more occasions for an aggregate period of not as defined in Section 8.03(a)), Parent, Merger Sub and their respective subsidiaries and Affiliates own more than ten business days if the Minimum Tender Condition has been satisfied 80% but fewer less than 90% of the shares of the Company Common Stock have been validly outstanding at that time (which shares beneficially owned shall include shares tendered in the Offer and not withdrawn. Parent ) and Merger Sub agree that if all the exercise of the conditions Top-Up Option would not result in the number of Top-Up Option Shares, when added to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment number of shares of Company Common Stock in beneficially owned by Merger Sub, constituting more than 90% of the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect then outstanding shares of Company Common Stock (calculated after giving effect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date issuance of the OfferTop-Up Option Shares), then to the extent requested by the Company, Merger Sub shall extend the provide for a subsequent offering period of at least ten (10) Business Days. The Offer for seven calendar days; provided that Merger Sub shall have no obligation may be terminated prior to so extend the Offer more than once. its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement) only if this Agreement is validly terminated in accordance with its terms.
(d) On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept pay for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted becomes obligated to accept purchase pursuant to the Offer as soon as practicable and pay in any event no more than two (2) Business Days after the expiration of the Offer. Merger Sub may, at any time, transfer or assign to one or more Subsidiaries of Parent the right to purchase all or any portion of the shares of Company Common Stock tendered pursuant to the Offer, but any such transfer or assignment shall not relieve Parent or Merger Sub of its respective obligations under the Offer or prejudice the rights of tendering stockholders to receive payment for under applicable lawshares of Company Common Stock validly tendered and accepted for payment. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any and all shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(be) On the date of commencement of the Offer, Parent and Merger Sub the Buyer Parties shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and purchase, a related form of letter of transmittal and transmittal, a summary advertisement and ancillary documents and instruments pursuant to which the Offer will be made (such Schedule TO and the documents included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto, the "“Offer Documents"”), and shall cause the Offer Documents to be disseminated to holders of shares of Company Common Stock in accordance with applicable federal securities Laws. The Offer Documents shall comply as to form in all material respects with the Securities Act, the Exchange Act and other applicable Laws, rules and regulations. Each of Parent, Merger Sub and the Company shall agrees to use all reasonable efforts to respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer, and to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have has become false or misleading in any material respect, and each of Parent and Merger Sub the Buyer Parties shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities lawsLaws. The Company and its counsel shall be given provided with a reasonable opportunity to review and comment upon on the Offer Documents Documents, including any amendment thereto, prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub The Buyer Parties shall provide to the Company and its counsel in writing with a copy of any written comments (and orally, telephonic notification of any oral comments), comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and comments, shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent comments and shall provide or cause to be provided to the Company and its counsel with a copy of any written response and telephonic notification of any oral response of Parent, 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 or their counsel to the OfferSEC.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its Article VIII, upon the terms pursuant and subject to Article VI hereof and none the conditions of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingthis Agreement, as promptly soon as reasonably practicable, practicable (but in no event later than six ten business days after the date of the initial public announcement of the execution and delivery of this Agreement Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SEC"“Exchange Act”). ) the Offer.
(b) The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, irrevocably deposit all requisite funds with the Paying Agent and pay for, any all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A. The initial expiration date A (the “Offer Conditions”) (without limiting the right of Merger Sub to terminate, extend or modify the Offer in accordance with the terms of this Agreement) and not to any other conditions.
(c) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall be remain open until 11:59 p.m., New York City time, on the 20th business day following the commencement of the OfferOffer (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, Section 1.1(d) or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with Section 1.1(d), the “Expiration Date”). Merger Sub and Parent expressly reserves reserve the right to waive waive, in whole or in part, any condition Offer Condition at any time and from time to time, in their sole and absolute discretion, other than the Offer Minimum Tender Condition, or to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, Series A Offer Price, Series B Offer Price or Series C-1 Offer Price, (iii) change waive, amend or waive modify the Minimum Tender Condition Condition, (as defined in Exhibit A), add iv) impose any additions to the conditions set forth in Exhibit A Offer Conditions or amend, modify or supplement any condition set forth in Exhibit A of the Offer Conditions in any manner adverse to the holders of Company Common Stock, (ivv) except as otherwise provided below in this Section 1.01(a)1.1, terminate, extend or otherwise amend or modify the Expiration Date or time of, the Offer, (vvi) change the all-cash form of consideration payable in the Offer Offer, or (vivii) otherwise amend amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders of Company Common Stock. .
(d) Notwithstanding the foregoing, Merger Sub may (but shall, and Parent shall not be obligated cause Merger Sub to), without the consent of the Company, (A) extend the Offer for one or more periods consecutive increments of time not more than five business days each (which, without the written consent length of the Company, shall not exceed ten days per extension) that such period to be determined by Parent or Merger Sub reasonably believes are necessary to cause in their sole discretion), or for such longer period as the conditions of the Offer set forth herein to be satisfiedparties may agree, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are Offer Conditions shall not satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived, waived and (B) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Offer; provided that under no circumstance shall Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b))Outside Date. Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On Upon the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment payment, irrevocably deposit all requisite funds with the Paying Agent and purchase pay for, all shares of Company Common Stock validly tendered and not theretofore validly withdrawn pursuant to the Offer Offer, such that Merger Sub becomes irrevocably obligated to purchase pursuant to the Offer all such shares on or as promptly as practicable after the Expiration Date. The time at which Merger Sub first accepts for payment the shares of Company Stock validly tendered and not validly withdrawn in the Offer is hereinafter referred to as the “Acceptance Time.” The Offer may not be terminated prior to its Expiration Date (as such Expiration Date may be extended in accordance with this Section 1.1(d)), unless this Agreement is validly terminated in accordance with Section 8.1. If the Offer is terminated or withdrawn by Merger Sub to the extent permitted by this Agreement, or this Agreement is terminated in accordance with Section 8.1, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to accept and pay for under applicable lawpromptly return, all tendered shares of Company Stock to the registered holders thereof. Nothing contained in this Section 1.1 shall affect any termination rights set forth in Section 8.1.
(be) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to SEC in accordance with Rule 14d-3 under the Company's stockholders, as and to the extent required by applicable Federal securities laws, Exchange Act a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain or, as permitted, incorporate by reference, an offer to purchase and a forms of the related letter of transmittal transmittal, summary advertisement, notices to brokers, clients and summary advertisement dealers, and all other ancillary Offer documents (such Schedule TO and the all such documents included therein or, as permitted, incorporated by reference therein, pursuant to which the Offer will be made, together with any supplements or all supplements, amendments and exhibits thereto, the "“Offer Documents"”) and shall disseminate the appropriate Offer Documents to the holders of Company Stock. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company and the holders of Company Stock required by the Exchange Act to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 1.1(e), including communication of the Offer to the record and beneficial holders of Company Stock. Each of 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 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 (i) to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Company Stock, in each case as and to the extent required by or deemed advisable under applicable Federal securities lawsLaws and (ii) to cause the Offer Documents, as amended or supplemented, to comply as to form in all material respects with the requirements of the Exchange Act, the applicable rules and regulations of NASDAQ and all other applicable Laws. The Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Stock, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment upon on such Offer Documents, and Parent and Merger Sub shall give reasonable and good faith consideration to all comments made by the Offer Documents prior to their filing with the SEC Company or dissemination to the stockholders of the Companyits counsel. Parent and Merger Sub shall promptly provide to the Company and its counsel in writing any with copies of all written comments (comments, and orally, any shall promptly inform the Company and its counsel of all oral comments), that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments Documents, and shall consult with the Company and its counsel prior to responding to any such commentscomments of the SEC or its staff with respect to the Offer Documents, give reasonable and good faith consideration to all comments made by the Company or its counsel, and to participate in any substantive telephonic communications with the staff of the SEC related thereto.
(cf) Parent shall provide or cause to be provided to Merger Sub promptly (and, in any case, on a sufficiently timely basis to enable Merger Sub to comply with the provisions of Section 1.1(d)) all funds necessary to purchase any the shares of Company Common Stock that Merger Sub has accepted for payment and irrevocably becomes obligated to purchase pursuant to the Offer.
(g) Parent and Merger Sub shall be entitled to deduct and withhold from the consideration payable to any holder of shares of Company Stock pursuant to the Offer such amounts as Parent or Merger Sub are required to deduct and withhold in respect of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable provision of state, local or foreign Tax Law. Amounts so withheld and paid to the appropriate taxing authority shall be treated for all purposes of this Agreement and the Offer as having been paid to the holder of Company Stock in respect of which such deduction or withholding was made.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been validly terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingIX, as promptly as reasonably practicable, but and in no any event later than six business days after the date of the public announcement of this Agreement within 10 Business Days, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations Rule 14d-2 under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), following its acceptance for payment of shares of Company Common Stock in ) the Offer. The obligations of Merger Sub, and 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 agree that if expressly reserves the transaction contemplated 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 (1) reduce the Offer Price, (2) change the form of consideration payable in the Offer (other than by adding consideration), (3) reduce the maximum number of Shares subject to the Offer, (4) waive or change the Minimum Condition, (5) add any condition to the Offer Conditions, (6) extend the expiration of the Offer, except as required or permitted by Section 4.16 with respect 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 the Company's San Diego facility holders of Shares.
(b) Unless extended as provided in this Agreement, the Offer shall expire at midnight (i.e., one minute after 11:59 p.m., New York City time) on the date that is 20 Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such 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, 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 the foregoing, subject to the parties’ respective rights to validly terminate this Agreement pursuant to Article IX, Merger Sub may or shall, as applicable, extend the Offer from time to time:
(i) if at any scheduled Expiration Date, the Minimum Condition has not been consummated on satisfied or prior to any scheduled expiration date of the Offerother Offer Conditions have not been satisfied or waived by Parent or Merger Sub, then Merger Sub shall extend the Offer for seven calendar daysone or more consecutive periods of up to 5 Business Days (each such period 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 Termination Date may be extended pursuant to Section 9.1(c)); provided 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) for any period required by applicable Law, including any rule, regulation, interpretation or position of the Securities and Exchange Commission (the “SEC”) or the staff thereof or the rules of the New York Stock Exchange (“NYSE”) applicable to the Offer; or
(iii) if, at any scheduled Expiration Date, (A) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Closing and 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 5.7 and Section 7.12 of this Agreement) and (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 Parent Termination Fee in accordance with subclause (1) of this Section 1.1(b)(iii) and (y) Merger Sub’s obligation, and Parent’s obligation to cause Merger Sub, to consummate the Offer, including to accept and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer and in accordance with this Section 1.1, all Offer Conditions set forth (I) in paragraphs (c)(ii)(C) and (c)(iv) of Annex I and (II) other than in respect of any willful or material breach (including any willful and material breach) following the date of delivery of such notice, in paragraph (c)(iii) of Annex I will be deemed to 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 Offer 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 Sub shall have no obligation not be permitted to so extend the Offer more to a date later than oncethe Termination Date (for the avoidance of doubt, as the Termination Date may be extended pursuant to Section 9.1(c)). On the terms and subject The Offer may be terminated prior to the conditions of Expiration Date (as it may be extended in accordance with this Section 1.1(b)), but only if this Agreement is validly terminated in accordance with Article IX. If the Offer and is terminated or withdrawn by Merger Sub, or this AgreementAgreement is validly terminated in accordance with Article IX, promptly after expiration prior to the acceptance for payment of Shares tendered in the 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 return, all tendered Shares to the registered holders thereof.
(c) Subject to the terms and conditions of the Offer 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 purchase thereafter pay for all shares of Company Common Stock 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, that Merger Sub is permitted with respect to accept and pay for under applicable law.
(b) On the date Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of commencement of the Offersuch guarantee, Parent and Merger Sub shall file with the SEC, be under no obligation to make any payment for such Shares unless and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter until such Shares are delivered in settlement or satisfaction of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Companyguarantee. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any shares of Company Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) 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 date of this Agreement and at or prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action.
Appears in 1 contract
Samples: Merger Agreement (Diamond Resorts International, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingSection 7.1, Merger Sub shall, as promptly as reasonably practicablepracticable (and, but in any event, no event later than six business days five (5) Business Days after the date later of (x) the filing by Parent with the SEC of Parent’s Annual Report on Form 10-K for its 2009 fiscal year, or (y) the filing by the Company with the SEC of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub toCompany’s Annual Report on Form 10-K for its 2009 fiscal year), commence the Offer (within the meaning of Rule 14d-2 promulgated under the applicable rules and regulations of Exchange Act) the Securities and Exchange Commission (the "SEC")Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares Each share of Company Common Stock tendered accepted by Merger Sub pursuant to the Offer are shall be exchanged for the right to receive from Merger Sub, as the holder may elect: (i) such number of shares or a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (A) $17.65 by (B) the Average Trading Price (such quotient, rounded to the nearest thousandth, being the “Stock Consideration”); or (ii) $17.65 in cash without interest (the “Cash Consideration”), subject to Section 1.1(c) through Section 1.1(f); provided, however, if Merger Sub has made the conditions set forth in Exhibit A. All-Cash Election, each share of Company Common Stock accepted by Merger Sub pursuant to the Offer shall be exchanged for the right to receive from Merger Sub the Cash Consideration. The initial expiration date of the Offer shall be the 20th business day twentieth Business Day (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”). The date on which Merger Sub commences the Offer is referred to as the “Offer Commencement Date”.
(b) The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(b)) (the last of such dates being referred to herein as the “Final Expiration Date”) and not withdrawn a number of shares of Company Common Stock which, together with the shares of Company Common Stock then owned by Parent and Merger Sub (if any), represents at least a majority of the sum of (i) the total number of shares of Company Common Stock outstanding immediately prior to the Final Expiration Date and (ii) the total number of shares of Company Common Stock issuable upon the exercise or conversion of all options, warrants, rights and convertible securities outstanding immediately prior to the Final Expiration Date (the “Minimum Condition” and such sum being the total shares of Company Common Stock on a “Fully Diluted Basis”) and to the other conditions set forth in Annex I hereto (together with the Minimum Condition, the “Offer Conditions”). The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. Parent and Merger Sub expressly reserves reserve the right to waive any condition to the Offer or modify Conditions and to make any change in the terms or conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Merger Sub shall not no change may be made which (iA) reduce decreases the number of shares of Company Common Stock subject to sought in the Offer, (iiB) reduce changes the price per share form or amount of Company Common Stock consideration to be paid pursuant (provided that the making of the All-Cash Election by the Merger Sub shall not be deemed to be such a change), (C) imposes conditions to the OfferOffer in addition to the Offer Conditions, (iiiD) change changes or waive waives the Minimum Tender Condition (as defined in Exhibit A), add to or any of the conditions set forth in Exhibit A clauses (2), (3), or modify any condition (4) of Annex I, (E) extends the expiration of the Offer (except as set forth in Exhibit A the following sentence), or (F) makes any other change to any of the terms and conditions to the Offer which is adverse in any manner adverse material respect to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders shares of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable Subject to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement, promptly after expiration ) of the OfferOffer Conditions, Merger Sub shall, and Parent shall cause Merger Sub it to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(b)) (the date on which shares of Company Common Stock are first accepted for payment under the Offer, the “Acceptance Date”) and shall pay for all such shares of Company Common Stock promptly after acceptance; provided, however, that (I) Merger Sub is permitted to accept and pay may extend the Offer for under applicable law.
successive extension periods not in excess of ten (b10) On Business Days per extension if, at the scheduled expiration date of commencement the Offer or any extension thereof, any of the Offer Conditions shall not have been satisfied or waived, until such time as such conditions are satisfied or waived, (II) if requested by the Company on any one occasion prior to or at the scheduled expiration date of the Offer, Parent and Merger Sub shall file with extend the SECOffer for a period of ten (10) Business Days in the event that any of the Offer Conditions, and cause other than the condition in paragraph (b) in Annex I in circumstances involving (1) a willful breach of any of the Company’s covenants, obligations or agreements hereunder or (2) a breach that would not reasonably be expected to be disseminated cured by the scheduled expiration date of the Offer as so extended pursuant to such request, shall not have been satisfied or waived at the Company's stockholderstime of such request, as (III) Merger Sub may extend the Offer if and to the extent required by the applicable Federal securities lawsrules and regulations of the SEC, a Tender Offer Statement on Schedule TO with respect to NASDAQ or the OfferNYSE, which shall contain an offer to purchase (IV) if Merger Sub makes the All-Cash Election, then Merger Sub may, in its discretion (and a related letter without the consent of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which Company or any other Person), extend the Offer will be made, together with any supplements or amendments thereto, until the "Offer Documents"). Each of Parent, date on which materials disclosing that Merger Sub and has made the Company shall 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 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 the Offer Documents as so amended or supplemented to be All-Cash Election are disseminated to the Company's stockholders’s stockholders and for a period of ten (10) Business Days after such date, in each case as and to (V) Merger Sub may extend the extent required by Offer on one occasion only for no more than ten (10) Business Days if all of the Offer Conditions have been satisfied or deemed advisable under applicable Federal securities laws. The waived, but less than 90% of the total shares of Company Common Stock on a Fully Diluted Basis have been validly tendered and its counsel not properly withdrawn at the otherwise scheduled Final Expiration Date; provided, further, that no such extension beyond the Outside Date shall be given reasonable opportunity to review and comment upon made without the Offer Documents prior to their filing with the SEC or dissemination to the stockholders consent of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause Subject to be provided to Merger Sub on a timely basis the funds necessary to purchase any Section 1.1(d) through Section 1.1(f), each holder of shares of Company Common Stock that shall be entitled to elect to receive either (i) the Cash Consideration (a “Cash Election”) in respect of all shares of Company Common Stock held by such stockholder (each such share being a “Cash Election Share”), or (ii) Stock Consideration (a “Stock Election”) in respect of all shares of Company Common Stock held by such stockholder (each such share being a “Stock Election Share”). With respect to each share of Company Common Stock for which no Cash Election or Stock Election has been made, the holder thereof shall be deemed to have made a Stock Election (each such share being a “No Election Share”). Any Cash Election or Stock Election shall be made solely on a form furnished by Merger Sub becomes obligated for that purpose (the “Form of Election”), included as part of the letter of election and transmittal included as part of the Offer Documents (the “Election and Transmittal Letter”), each in a form that is reasonably satisfactory to purchase the Company. Holders of record who hold shares of Company Common Stock as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders.
(d) Notwithstanding any provision of this Agreement to the contrary and subject to Section 1.1(e) and Section 1.1(f):
(i) If the product of (x) the total number of Cash Election Shares and (y) the Cash Consideration (such product being the “Elected Cash Consideration”) is greater than the product of fifty percent (50%) of the number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub pursuant to the Offer and the Cash Consideration (such product, subject to adjustment as provided in Section 1.1(d)(iv), being the “Available Cash Amount”), then:
(A) each Stock Election Share and each No Election Share shall be converted into the right to receive the Stock Consideration; and
(B) each Cash Election Share shall be converted into the right to receive: (1) an amount in cash equal to the quotient obtained by dividing (I) the Available Cash Amount by (II) the total number of Cash Election Shares (such quotient being the “Adjusted Cash Consideration”); and (2) the number of shares or a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (I) the amount equal to (a) the Cash Consideration minus (b) the Adjusted Cash Consideration by (II) the Average Trading Price.
(ii) If the product of (x) the sum of the total number of Stock Election Shares and the total number of No Election Shares and (y) the Stock Consideration (such product being the “Elected Stock Consideration”) is greater than the product of fifty percent (50%) of the number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub pursuant to the Offer and the Stock Consideration (such product, subject to adjustment as provided in Section 1.1(d)(iv), being the “Available Stock Amount”), then:
(A) each Cash Election Share shall be converted into the right to receive the Cash Consideration; and
(B) each Stock Election Share and each No Election Share shall be converted into the right to receive: (1) the number of shares or a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (I) the Available Stock Amount by (II) the sum of the total number of Stock Election Shares and the total number of No Election Shares (such quotient being the “Adjusted Stock Consideration”); and (2) an amount in cash equal to the product of (I) an amount equal to (a) the Stock Consideration minus (b) the Adjusted Stock Consideration and (II) the Average Trading Price.
(iii) If the Elected Cash Consideration equals the Available Cash Amount (and the Available Stock Amount as initially calculated is not adjusted pursuant to Section 1.1(d)(iv)), then:
(A) each Cash Election Share shall be converted into the right to receive the Cash Consideration; and
(B) each Stock Election Share and each No Election Share shall be converted into the right to receive the Stock Consideration.
(iv) Notwithstanding any provision of this Agreement to the contrary, in no event shall the total number of shares of Parent Common Stock issuable pursuant to the Offer exceed the Stock Consideration Cap (as defined below in this Section 1.1(d)(iv)); and accordingly, if the Stock Consideration Cap is less than the Available Stock Amount as initially calculated pursuant to Section 1.1(d)(ii), then (A) the “Available Stock Amount” as so calculated shall be adjusted and instead shall be equal to the product of (I) 19.9% of the number of shares of Parent Common Stock outstanding immediately prior to the Acceptance Date and (II) the quotient obtained by dividing (1) the total number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub pursuant to the Offer, by (2) the total number of shares of Company Common Stock outstanding as of the Acceptance Date (such product also being the “Stock Consideration Cap”); and (B) the “Available Cash Amount” as initially calculated pursuant to Section 1.1(d)(i) shall be adjusted and instead shall be equal to the amount of (I) the product of (1) the number of shares of Company Common Stock validly tendered and accepted for payment by Merger Sub pursuant to the Offer and (2) $17.65 minus (II) the product of (1) the Available Stock Amount as calculated pursuant to the immediately preceding clause (A) and (2) the Average Trading Price. Notwithstanding anything to the contrary in this Agreement, including any of Section 1.1(d) through Section 1.1(f), in no event shall the consideration per share payable pursuant to the Offer, consisting of the sum of (A) the product of that number of shares, or that fraction of a share, of Parent Common Stock, if any, issuable as the Stock Consideration for such share pursuant to the Offer multiplied by the Average Trading Price, plus (B) the cash payable as the Cash Consideration for such share pursuant to the Offer, if any, be other than $17.65.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingSection 11.01, as promptly as reasonably practicablepracticable after the date hereof, but in no event later than six business days after 10 Business Days following the date of the public announcement of this Agreement Agreement, Merger Sub shall, and Parent Subsidiary shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations of Exchange Act) the Securities and Exchange Commission (the "SEC")Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. Annex I hereto (the “Offer Conditions”). The initial expiration date of on which Merger Subsidiary commences the Offer shall be is referred to as the 20th business day following the commencement of the Offer. “Offer Commencement Date.”
(b) Merger Sub Subsidiary expressly reserves the right to waive any condition of the Offer Conditions and to make any change in the terms of or conditions to the Offer (other than the Minimum Condition (as defined in Annex I), which is non-waivable and may not be amended or modify the terms of the Offer, except modified); provided that, without the prior written consent of the CompanyCompany (provided that such consent has been approved by the Special Committee), Merger Sub Subsidiary shall not not:
(i) reduce decrease the number of shares of Company Common Stock subject to the Offer, Offer Price;
(ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable to be paid in the Offer;
(iii) decrease the number of Shares subject to the Offer;
(iv) extend or otherwise change the Expiration Time of the Offer or except as provided herein;
(v) impose conditions to the Offer other than the Offer Conditions; or
(vi) otherwise amend amend, modify or supplement any of the terms or conditions of the Offer in any a manner adverse to that adversely affects the holders of Company Common StockShares.
(c) Unless extended as provided in this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, Merger Sub may (but Subsidiary shall, and Parent shall not be obligated cause it to), without the consent of the Company, (A) extend the Offer (i) for one or more periods consecutive increments of not more than 10 Business Days from time (whichto time if, without at the written consent then-scheduled expiration time of the CompanyOffer, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions any of the Offer set forth herein Conditions shall not have been satisfied or waived; provided that Parent shall not be required to be satisfied, if at extend the scheduled expiration Offer pursuant to this clause (i) beyond the earlier of (A) the End Date and (B) the date that is 10 Business Days after the date that all of the Offer any of Conditions (other than the conditions Minimum Condition and those that by their nature are to Merger Sub's obligation be satisfied immediately prior to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are the Acceptance Time) have been satisfied or waived, and (Bii) extend the Offer for any period required by (x) any applicable rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (Cy) extend the Offer on one rules and regulations of NASDAQ or more occasions for an aggregate period of not more than ten business days if Applicable Law; and provided further that, without the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Company’s prior written consent, Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, Subsidiary shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date then-scheduled expiration time if an Adverse Recommendation Change has occurred (as defined in Section 6.01(bexcept for any extension pursuant to clause (ii)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for The time when the Offer expires (taking into account any permitted or required extensions in accordance with Rule 14d-11 of this Section 2.01(c)) is referred to herein as the Securities Exchange Act of 1934“Expiration Time.” Merger Subsidiary shall not, as amended (and Parent shall cause it not to, terminate or withdraw the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect Offer prior to the Company's San Diego facility has not been consummated on or prior to any then-scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions Expiration Time of the Offer and unless this Agreement, promptly after expiration of Agreement is validly terminated in accordance with its terms. In the Offerevent that this Agreement is terminated, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub it to, promptly, irrevocably and unconditionally terminate the Offer. In the event that the Offer is terminated, Merger Subsidiary shall not acquire any Shares pursuant to the Offer and shall cause any depositary acting on its behalf to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(d) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, (1) accept for payment payment, as promptly as practicable (and purchase in any event within one Business Day) after the Expiration Time, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”, and the date on which the Acceptance Time occurs, the “Offer Closing Date”), and (2) promptly thereafter pay for under applicable lawsuch Shares.
(be) On As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Sub Subsidiary shall (3) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto, which and including all exhibits thereto, the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits, the Offer to purchase and Purchase, a related form of letter of transmittal and a summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents")”) and (4) cause the Offer Documents to be disseminated to holders of Shares to the extent required by applicable U.S. federal securities laws. Parent and Merger Subsidiary shall use their reasonable best efforts to ensure that the Schedule TO, and any amendments or supplements thereto, comply in all material respects with the rules and regulations promulgated by the SEC under the Exchange Act. Each of Parent, Merger Sub Subsidiary and the Company shall agrees promptly to correct any information provided by it or on its behalf for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect, and each of . Parent and Merger Sub Subsidiary shall take all steps necessary to amend or supplement the Offer Documents and use their reasonable best efforts to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws or deemed advisable under applicable Federal securities lawsthe rules and regulations of NASDAQ. The Company shall furnish to Parent and Merger Subsidiary the information relating to the Company required by the Exchange Act to be set forth in the Schedule TO and the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and any Offer Documents prior to their filing Document each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Merger Sub Subsidiary shall provide to the Company and its counsel in writing with (i) any comments or other communications, whether written comments (and orallyor oral, any oral comments), that Parent, Merger Sub Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt of such those comments or other communications and (ii) 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 consult with be given), including by using reasonable best efforts to give the Company the opportunity to participate with Parent and Merger Subsidiary and its counsel prior to responding to in any such comments.
(c) Parent shall provide substantive discussions or cause to be provided to Merger Sub on a timely basis meetings with the funds necessary to purchase any shares of SEC. The Company Common Stock that Merger Sub becomes obligated to purchase pursuant hereby consents to the Offerinclusion 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 accordance with Section 7.03(b).
Appears in 1 contract
Samples: Merger Agreement (Roche Holding LTD)
The Offer. (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingherein, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, shall (and Parent shall cause Merger Sub to, ) commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) a cash tender offer to purchase all of the Securities issued and Exchange Commission outstanding shares of the Company Common Stock for $7.75 U.S. Dollars per share of Company Common Stock (such amount, or any greater amount per share of Company Common Stock paid pursuant to the "SEC"offer, the “Per Share Amount” and such offer, as it may be amended from time to time pursuant to the terms hereof, the “Offer”) no later than twenty (20) days after the date hereof (unless such date is not a business day, in which case the first business day after the date that twenty (20) days after the date hereof). The obligations Subject to satisfaction or waiver of Merger Sub tothe Tender Offer Conditions (as defined below) and the terms and conditions hereof, and of Parent to shall cause Merger Sub to, to accept for payment, and Merger Sub shall accept for payment, all shares of the Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any event not more than the fourth business day) following the Expiration Date (as defined below). Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless and until this Agreement is terminated in accordance with Section 8.1.
(b) The obligation of Merger Sub to accept for payment, purchase, and pay for, for any shares of Company Common Stock tendered pursuant to the Offer are (and not validly withdrawn) shall only be subject to the satisfaction or waiver pursuant to the terms hereof of (i) the condition (the “Minimum Condition”) that the number of shares of Company Common Stock validly tendered and not withdrawn prior to the Expiration Date, when added to any shares of Company Common Stock already owned by Parent or any of its subsidiaries, if any, shall be at least a majority of the shares of Company Common Stock then outstanding on a fully-diluted basis (assuming the exercise of all options, warrants and other rights to purchase shares of Company Common Stock regardless of exercise price, vesting schedule or other terms or conditions thereof (other than any Warrants, Company Stock Options and Company Stock Awards that are cashed out at the Acceptance Date pursuant to Section 3.3 or Section 3.5 and with respect to which the holders thereof have entered into the cancellation agreements referenced in Section 3.3 and Section 3.5) and (ii) the other conditions set forth in Exhibit A. The initial expiration date of Annex A hereto (the conditions described in clauses (i) and (ii) are collectively referred to as the “Tender Offer shall be the 20th business day following the commencement of the OfferConditions”). Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition, which may not be amended or waived), to increase the Offer or modify Per Share Amount payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, except that, that without the prior written consent of the CompanyCompany no change may be made that decreases the Per Share Amount (except as provided in Section 1.1(h)), Merger Sub shall not (i) reduce changes the form of consideration payable in the Offer, imposes conditions to the Offer in addition to the Tender Offer Conditions, decreases the number of shares of Company Common Stock subject to the Offer, (ii) reduce reduces the price per share of Company Common Stock to be paid pursuant to time period during which the OfferOffer shall remain open, (iii) change or waive modifies, amends or supplements the Minimum Offer or the Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A Offer Conditions in any manner adverse to the holders of Company Common Stock, Stockholders.
(ivc) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On Upon the terms and subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time, on the later of (i) the twentieth (20th) business day following commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) and this Agreement(ii) May 31, promptly after expiration 2013 (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of Section 1.1(d) or as required by Applicable Law or the interpretations of the Securities and Exchange Commission (the “SEC”) (in which event the term “Expiration Date” shall mean the latest time and date on which the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersextended, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given 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. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral commentsmay expire), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have having been terminated in accordance with its terms pursuant to Article VI hereof and none the provisions of Section 7.1 hereof, Lockheed Xxxxxx, acting through a wholly- owned single member Delaware limited liability company (the events set forth in paragraphs (a) through (f) of Exhibit A hereto "OFFER SUBSIDIARY"), shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six five business days after from the date of the public announcement of the terms of this Agreement Merger Sub shall, and Parent shall cause Merger Sub toAgreement, commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended, and all rules and regulations of the Securities and Exchange Commission promulgated thereunder (the "SECEXCHANGE ACT")) an offer to purchase for cash (as it may be amended in accordance with the terms of this Agreement, the "OFFER") up to the number of shares (collectively, the "SHARES") of COMSAT's common stock, without par value (the "COMSAT COMMON STOCK"), that is equal to the remainder of (i) 49% of the number of shares of COMSAT Common Stock outstanding at the close of business on the date of purchase pursuant to the Offer minus (ii) the number of shares of ----- COMSAT Common Stock then owned of record by "authorized carriers" (as defined in the Communications Satellite Act of 1962, as amended, 47 U.S.C. (S)701 et. seq., and all rules and regulations promulgated thereunder (the "SATELLITE ACT")) ("AUTHORIZED CARRIERS"), as evidenced by issuance of shares of Series II COMSAT Common Stock, minus (iii) the number of shares of COMSAT Common Stock with ----- respect to which written demand shall have been made and not withdrawn under Section 29-373 of the District of Columbia Business Corporation Act (the "DCBCA"), at a price of not less than $45.50 per Share, net to the seller in cash (the "OFFER PRICE"). Lockheed Xxxxxx shall extend the Offer, for periods of no more than 60 days, until the earlier of (i) the one year anniversary of the date hereof or (ii) 10 business days after the date on which the last of the Authorized Carrier Conditions (as defined in Exhibit A hereto) shall have been --------- obtained. The obligations obligation of Merger Sub to, and of Parent Lockheed Xxxxxx to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial expiration date A (any of which may be waived in whole or in part by Lockheed --------- Xxxxxx in its sole discretion), and to the Offer shall be the 20th business day following the commencement terms and conditions of the Offerthis Agreement. Merger Sub Lockheed Xxxxxx expressly reserves the right to waive any condition to the Offer or modify the terms and conditions of the Offer, except that, without the prior written consent of the CompanyCOMSAT, Merger Sub Lockheed Xxxxxx shall not (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit AA hereto), (iii) --------- reduce the Offer Price, (iv) modify or add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockA, (ivv) except as provided below in this Section 1.01(a1.1(a), extend the term of the --------- Offer, (vvi) change the form of the consideration payable in the Offer or (vivii) make any other modifications that are otherwise amend the Offer in any manner materially adverse to the holders of Company COMSAT Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)Lockheed Xxxxxx may, without the consent of the CompanyCOMSAT, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions term of the Offer set forth herein to be satisfied, if at the beyond any scheduled expiration date of the Offer (but not beyond the two year anniversary of the date hereof) if, at any such scheduled expiration date, any of the conditions to Merger Sub's Lockheed Xxxxxx'x obligation to purchase shares of Company Common Stock are accept for payment, and pay for, Shares tendered pursuant to the Offer shall not satisfied, until such time as such conditions are have been satisfied or waived, waived and (B) extend the Offer (but not beyond the two year anniversary of the date hereof) for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date other applicable Law (as defined in Section 6.01(b)hereinafter defined). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On Upon the terms and subject to the conditions of the Offer Offer, Lockheed Xxxxxx shall accept for payment and this Agreementwill pay for, promptly after expiration as soon as permitted under the terms of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant prior to the expiration of the Offer. The date and time at which the Offer that Merger Sub shall close is permitted referred to accept and pay for under applicable lawas the "OFFER CLOSING TIME".
(b) On Lockheed Xxxxxx shall not, nor shall it permit any of its affiliates to, tender into the date Offer any shares of COMSAT Common Stock beneficially owned by it; provided, that shares of COMSAT Common Stock held beneficially or of -------- record by any plan, program or arrangement sponsored by Lockheed Xxxxxx or maintained for the benefit of employees of Lockheed Xxxxxx or any of its Subsidiaries (as hereinafter defined) shall be deemed not to be held by Lockheed Xxxxxx or an affiliate thereof regardless of whether Lockheed Xxxxxx has, directly or indirectly, the power to vote or control the disposition of such shares of COMSAT Common Stock. COMSAT shall not, nor shall it permit any of its Subsidiaries to, tender into the Offer any shares of COMSAT Common Stock beneficially owned by it; provided, that shares of COMSAT Common Stock held -------- beneficially or of record by any plan, program or arrangement sponsored by COMSAT or maintained for the benefit of employees of COMSAT or any of its Subsidiaries shall be deemed not to be held by COMSAT regardless of whether COMSAT has, directly or indirectly, the power to vote or control the disposition of such shares of COMSAT Common Stock.
(c) Notwithstanding anything to the contrary contained in this Agreement, Lockheed Xxxxxx shall not be required to commence the Offer in any foreign country where the commencement of the Offer, Parent and Merger Sub in Lockheed Xxxxxx'x reasonable opinion, would violate the applicable Law of such jurisdiction.
(d) On the date of the commencement of the Offer, Lockheed Xxxxxx shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer, which shall will contain an the offer to purchase and a form of the related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). Each The Offer Documents shall comply as to form in all material respects with the requirements of Parentthe Exchange Act and, Merger Sub on the date filed with the SEC and when first published, sent or given to COMSAT's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the Company statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Lockheed Xxxxxx with respect to information supplied by COMSAT in writing for inclusion in the Offer Documents or incorporated therein by reference to any statement, report or other document filed by or on behalf of COMSAT with the SEC. Upon obtaining knowledge, Lockheed Xxxxxx or COMSAT shall correct 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 each of Parent and Merger Sub Lockheed Xxxxxx further shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the CompanyCOMSAT's stockholdersshareholders, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities lawsLaws. The Company COMSAT and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing of such Offer Documents with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub Lockheed Xxxxxx shall provide to the Company COMSAT and its counsel in writing with any written comments (Lockheed Xxxxxx and orally, any oral comments), Parent, Merger Sub or their its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and thereof. Lockheed Xxxxxx shall consult take all steps reasonably necessary to cause the Offer Documents to be filed with the Company SEC and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant disseminated to the Offerholders of COMSAT Common Stock, in each case as, and to the extent, required by applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Comsat Corp)
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable, practicable but in no event later than six five business days after the date of the public announcement by Parent and the Company of this Agreement Merger Agreement, Sub shall, and Parent shall cause Merger Sub to, commence amend the Existing Offer to reflect the Offer within Price and to make such other amendments as are necessary to conform the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Existing Offer to this Agreement. The obligations obligation of Merger Sub to, and of Parent to cause Merger Sub to, amend the Offer and accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject only to the conditions set forth in Exhibit A. The initial expiration date A (the "Offer Conditions") and to the terms and conditions of this Agreement, including the Merger Option (as defined herein) (any of which may be waived in whole or in part by Sub in its sole discretion, except that Sub shall not waive the Minimum Condition (as defined in Exhibit A) without the consent of the Offer shall be the 20th business day following the commencement of the OfferCompany). 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 (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add impose any other conditions to the conditions set forth in Exhibit A Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any condition set forth in Exhibit A in any manner adverse Offer Conditions to the holders of Company Common Stockextent permitted by this Agreement), (iv) except as provided below in this Section 1.01(a)the next sentence, extend the Offer, Offer or (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company, (Ai) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedOffer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are Offer Conditions shall not satisfiedbe satisfied or waived, until such time as such conditions are satisfied or waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or and (Ciii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten 15 business days if beyond the Minimum Tender Condition has been satisfied but fewer than 90% latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, in each case subject to the shares right of Parent, Sub or the Company Common Stock have been validly tendered and not withdrawnto terminate this Agreement pursuant to the terms hereof. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on at any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without Minimum Condition or the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date HSR Condition (as defined in Section 6.01(b)). Merger Sub may, with the written consent Exhibit A) shall not have been satisfied and none of the Companyconditions set forth in paragraphs (a), elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 (b), (c), (d), (e), (f), (g) or (h) of Exhibit A shall exist, at therequest of the Securities Exchange Act of 1934, as amended Company (the "Exchange Act"confirmed in writing), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger from time to time, subject to the right of Parent, Sub shall have no obligation or the Company to so extend terminate this Agreement pursuant to the Offer more than onceterms hereof. On Subject to the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment payment, and purchase pay for, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted becomes obligated to accept for payment, and pay for under applicable lawfor, pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) On the date of commencement amendment of the Existing Offer, Parent and Merger Sub shall file with the SEC, and cause SEC an amendment (the "14D-1 Amendment") to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a its Tender Offer Statement on Schedule TO 14D-1 dated as of October 3, 1997 (as amended from time to time, the "Schedule 14D-1") with respect to the Offer, which shall contain an such amendments and supplements to the offer to purchase and a related letter of transmittal and summary advertisement as Parent, in its reasonable judgment, shall deem necessary (such Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable Federal securities laws. Each of Parent, Merger Sub and the Company shall each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given 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. Parent and Merger Sub shall agree to provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult to cooperate with the Company and its counsel prior to in responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wallace Computer Services Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof Section 8.1 hereof, and (ii) none of the events set forth in paragraphs (a) through (f) of Exhibit A Annex I hereto shall have occurred or be existing, as promptly as reasonably practicable, but in no event later than six business days after the date of the public announcement of this Agreement Merger Sub shall, and Parent shall cause Merger Sub toas promptly as practicable after the date hereof, but no later than December 4, 2001, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer. The obligations of Each Share accepted by Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject shall be exchanged for the right to receive that number of fully paid and nonassessable shares of Parent Common Stock equal to the conditions set forth Exchange Ratio, plus the right to receive cash in Exhibit A. lieu of fractional Shares, if any. For purposes of this Agreement, the term "EXCHANGE RATIO" shall mean the quotient obtained by dividing the Company Stock Value by the Average Parent Post-Signing Trading Price; provided that, if the quotient obtained by dividing the Company Stock Value by the Average Parent Post-Signing Trading Price is greater than the quotient obtained by dividing the Company Stock Value by the Adjusted Average Parent Pre-Signing Trading Price, then the term "EXCHANGE RATIO" shall mean the quotient obtained by dividing the Company Stock Value by the Adjusted Average Parent Pre-Signing Trading Price. The initial expiration date of the Offer shall be the 20th twentieth business day following the commencement of the Offer. The Offer shall be subject to (A) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Sub (if any), represents a number equal to at least the sum of (x) a majority of the total number of Shares and (y) the total number of shares of Company Common Stock issuable upon exercise of Company Options, each as outstanding immediately prior A-1 to the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) (the condition referred to in this sentence being referred to as the "MINIMUM CONDITION"); for the avoidance of doubt, it being understood that Shares tendered into the Offer pursuant to a Notice of Guaranteed Delivery shall be counted in the computation of the Minimum Condition only to the extent the stock certificates for such Shares are actually delivered to the Exchange Agent (or, if the Shares are delivered to the Exchange Agent via book-entry, credited to the Exchange Agent's account with The Depository Trust Company) prior to computing the Minimum Condition at the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)), and (B) each of the other conditions set forth in Annex I hereto. Parent and Merger Sub expressly reserves reserve the right to waive any condition one or more conditions to the Offer or modify and to make any change in the terms or conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Merger Sub shall not no change may be made which (i) reduce decreases the number of shares of Company Common Stock subject to Shares sought in the Offer, (ii) reduce changes the price per share form or amount of Company Common Stock consideration to be paid pursuant to the Offerpaid, (iii) change imposes conditions to the Offer in addition to those set forth in Annex I, (iv) changes or waive waives the Minimum Tender Condition (as defined in Exhibit A), add to or any of the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A Annex I in any manner which is adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the OfferShares, (v) change extends the form of consideration payable Offer (except as set forth in the Offer following two sentences), or (vi) otherwise amend makes any other change to any of the terms and conditions to the Offer in any manner which is adverse to the holders of Company Common StockShares. Notwithstanding Subject to the foregoingterms of the Offer and this Agreement and the satisfaction (or waiver by Parent to the extent permitted by this Agreement) of the conditions set forth in Annex I to the Offer, Merger Sub may (but shall accept for payment all Shares validly tendered and not be obligated to), without withdrawn pursuant to the consent Offer as soon as practicable after the applicable expiration date of the CompanyOffer (as it may be extended in accordance with the requirements of this Section 1.1(a)) and shall pay for all such Shares promptly after acceptance; provided, however, that (A) Merger Sub shall extend the Offer for one or more successive extension periods (up to the Termination Date) not in excess of time (which, without the written consent of the Company, shall not exceed ten business days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfiedextension period if, if at the scheduled expiration date of the Offer or any extension thereof, any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are the Offer shall not satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived, and (B) Merger Sub may 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 (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by the applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect to rules and regulations of the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements SEC or amendments thereto, the "Offer Documents")NASD. Each of ParentIn addition, Merger Sub and the Company shall promptly correct any information provided by it for use in may extend the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt acceptance of such comments and shall consult with Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Company and its counsel prior to responding to any such commentsExchange Act.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. Provided that (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof hereof, (b) the Share Tender Agreements shall have been executed simultaneously with this Agreement and (c) the Board of Directors has taken action to eliminate any requirement that the Salary Continuation Agreements Trust be fully funded for all current benefit obligations upon a change of control of the Company, and so long as none of the events set forth in paragraphs (a) through (f) of Exhibit Annex A hereto (the "Tender Offer Conditions") shall have occurred or be existingand are continuing, as promptly as reasonably practicable, but in no event later than six the fifth business days day after the date of the public announcement of the execution of this Agreement Merger Agreement, Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligations of Sub to accept for payment and promptly to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer within Conditions, any of which may be waived by Parent and Sub; PROVIDED, HOWEVER, that, without the meaning consent of the applicable rules Company, Sub shall not waive the condition that there shall have been validly tendered and regulations not validly withdrawn prior to the expiration of the Securities and Exchange Commission Offer a number of shares of Common Stock which represent at least 70% of the total voting power of all shares of capital stock of the Company outstanding on a fully diluted basis (the "SECMinimum Condition"). The obligations of Merger Sub to, and Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to cause Merger Sub toany such Tender Offer Condition 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 preceding sentence, may be waived by Parent and Sub in Exhibit A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offerwhole or in part. Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, including, without limitation, except thatas provided below, to extend the Offer beyond any scheduled expiration date; PROVIDED, HOWEVER, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to be purchased in the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the OfferOffer Price, (iii) change modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit Annex A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger Sub the Offer may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on extended beyond any scheduled expiration date unless any of the OfferTender Offer Conditions shall not have been satisfied; PROVIDED, then Merger Sub shall from time to time and on each such occurrence extend HOWEVER, (i) even if the Tender Offer Conditions have not been satisfied, the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall may not be required to extend the Offer extended beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent three month anniversary of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent Offer and Merger Sub shall file with (ii) if the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, a Tender Offer Statement on Schedule TO with respect Conditions have been satisfied, then the Offer may be extended for an additional five business days so long as at the time of such extension, all conditions to the Offer, which shall contain an offer Sub's obligations to purchase and a related letter shares of transmittal and summary advertisement (such Schedule TO and the documents included therein Common Stock pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). Each of 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 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 the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such commentsare irrevocably waived.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Geon Co)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VI hereof and none of the events set forth in paragraphs Paragraphs (a) through (f) of Exhibit A Annex I hereto shall have occurred or be existing, no later than two (2) business days after the public announcement of the terms of this Agreement, the Purchaser shall commence the Offer, in accordance with the requirements of Regulations 14D and 14E promulgated under the Exchange Act, and any applicable State securities laws, to purchase all of the issued and outstanding Common Shares for the Offer Price net to the seller thereof in cash, provided, however, that the Purchaser shall use its best efforts to commence the Offer as promptly soon as reasonably practicablepracticable after the public announcement of the terms of this Agreement, but in no event later than six two business days after such public announcement. The Offer shall expire and terminate on the twentieth (20th) business day from the commencement of the Offer (the "Expiration Date"); provided, however, that the Purchaser shall have the right to extend the Expiration Date up to ten (10) additional business days in order to satisfy any of the conditions set forth in Annex I hereto other than the Offer Financing Condition, provided that the failure of such conditions to be satisfied is not due to a breach of this Agreement by Parent or Purchaser. Provided that this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than (2) two business days after the date of the public announcement of the terms of this Agreement Merger Sub shallAgreement, and Parent the Purchaser shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of file with the Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to ) the Offer 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. 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 (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company, (A) extend the Offer for one or more periods of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes are necessary to cause the conditions of the Offer set forth herein to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or (C) extend the Offer on one or more occasions for an aggregate period of not more than ten business days if the Minimum Tender Condition has been satisfied but fewer than 90% of the shares of the Company Common Stock have been validly tendered and not withdrawn. Parent and Merger Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, then Merger Sub shall from time to time and on each such occurrence extend the Offer for a period of time (which, without the written consent of the Company, shall not exceed ten days per extension) that Merger Sub reasonably believes is necessary to cause the conditions of the Offer set forth herein to be satisfied until such conditions are satisfied or waived, provided that, so long as Parent and Merger Sub shall have complied with their obligations under this Agreement, Merger Sub shall not be required to extend the Offer beyond the Drop Dead Date (as defined in Section 6.01(b)). Merger Sub may, with the written consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), following its acceptance for payment of shares of Company Common Stock in the Offer. Parent and Merger Sub agree that if the transaction contemplated by Section 4.16 with respect to the Company's San Diego facility has not been consummated on or prior to any scheduled expiration date of the Offer, then Merger Sub shall extend the Offer for seven calendar days; provided that Merger Sub shall have no obligation to so extend the Offer more than once. On the terms and subject to the conditions of the Offer and this Agreement, promptly after expiration of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub is permitted to accept and pay for under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable Federal securities laws, 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 14D-1 (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), which shall contain (as an exhibit) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the holders of Common Shares with respect to the Offer, which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the terms and subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall use its best efforts to file the Tender Offer Statement on Schedule 14D-1 as soon as practicable, but in no event later than two business days after such public announcement. The obligation of Purchaser to accept for payment or pay for any Common Shares tendered pursuant to the Offer will be subject only to the satisfaction of the condition set forth in Annex I hereto. Without the prior written consent of the COMPANY, the Purchaser shall not decrease the price per Common Share or change the form of consideration payable in the Offer, decrease the number of Common Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive the Minimum Condition (as defined in Annex I), impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Common Shares; provided that the Purchaser expressly reserves the right to waive any condition to the Offer (other than the Minimum Condition) without the consent of the COMPANY. Subject to the terms of the Offer and this Agreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Purchaser will accept for payment and pay for all Common Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such Expiration Date (the time of such purchase being referred to herein as the "Offer Purchase Closing"). Purchaser shall make reasonable provision for the payment of Offer proceeds to be made by wire transfer of immediately available funds to any person tendering Common Shares representing more than 1% of the COMPANY's outstanding Common Shares. Subject to Section 8.01, if any of the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, waived by the Purchaser as of the Expiration Date (or any subsequently scheduled expiration date), Purchaser will extend the Offer from time to time, in each case, for the shortest time period that it reasonably believes is necessary for the consummation of the Offer. Each of Parentthe parties hereto shall use its reasonable best efforts to cause all conditions precedent set forth in Annex I to be fulfilled and avoid the occurrence of any event or to cure any event which may prevent such conditions precedent set forth in Annex I from being fulfilled.
(b) The Offer Document will comply in all material respects with the provisions of applicable federal securities laws and, Merger Sub 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 made 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 in writing for inclusion in the Offer Documents. Each of Parent and the Company shall Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and each of Parent and Merger Sub shall the Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to stockholders of the Company's stockholders, in each case case, as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Samples: Merger Agreement (Princess Beverly Coal Holding Co Inc)