The Offers. Subject to the terms and conditions of this Agreement (including, for greater certainty, the conditions set forth in Schedule “C”), as part of the Transaction, HCo agrees to make an offer to purchase all of the outstanding Units, Series 1 Debentures and Series 2 Debentures (collectively, the “APIF Securities”) at the applicable Offer Price per APIF Security (the “Offers”, which terms shall include any one or more changes or variations to, or extensions of, such Offers) on the following terms and conditions: (a) HCo shall mail or cause to be mailed to all holders of APIF Securities, as soon as reasonably practicable following satisfaction of the conditions set forth below, the Offers, which Offers shall be made by way of a take-over bid circular (the “Bid Circular”) in compliance with the Securities Act (Ontario) and all other applicable securities laws, regulations and rules and the policy statements, orders and rulings of Canadian and United States securities regulatory authorities (the “Securities Laws”) and which Offers shall be subject to the conditions set forth in Schedule “C” hereto; provided the Board of Trustees or its Representatives have provided to HCo a reasonably completed Bid Circular, in both English and French languages, that complies in all material respects with Securities Laws (including any information pertaining to HCo, APIF and pro forma financial statements). HCo shall not be required to make the Offers (i) in any jurisdiction where it would be illegal to do so, (ii) in any jurisdiction other than Canada and the United States, or (iii) if the mailing has not occurred prior to the Bid Circular Mailing Date; (b) The mailing of the Bid Circular shall be conditional on the following matters, all of which conditions are intended to be for the sole benefit of HCo and any of which can be waived in whole or in part in its sole discretion without prejudice to any other right it may have under this Agreement: (i) this Agreement shall not have been terminated pursuant to Article 5; (ii) the Board of Trustees shall have provided HCo the lists referred to in Section 4.1(a)(vi); (iii) as of the date the Offers are to be made, there shall be no breach of or non-compliance with any material covenant, agreement or obligation of the Board of Trustees contained herein (in any case, as determined by HCo, acting reasonably); (iv) no circumstance, fact, change, event or occurrence shall have occurred or come into existence that would render it impossible for one or more of the conditions set out on Schedule “C” hereto or in the Divestiture Agreement to be satisfied; (v) no cease trade order, injunction or other prohibition under applicable Law shall exist against HCo (A) making the Offers as contemplated herein, (B) taking-up or paying for APIF Securities deposited under the Offers, (C) completing the Compulsory Acquisition, (D) completing the Arrangement, or (E) completing the transactions as contemplated in the Divestiture Agreement; (vi) the Board of Trustees shall have complied in all respects with its covenants in this Agreement; (vii) each of the representations and warranties contained in Sections 3.1(a), 3.1(b) and 3.1(d) shall be true and correct in all material respects as of the date of the mailing of the Bid Circular with the same effect as if made at and as of the date of this Agreement and the date of the mailing of the Bid Circular (other than such representations that are made as of a specified date, which shall be true and correct as of such date); (viii) that the trustees’ circular (the “Trustees’ Circular”) prepared, and approved in final form, by the Board of Trustees shall be made available by the Board of Trustees to be mailed to holders of APIF Securities at the same time, and in the same package, as the Bid Circular and that in the Trustees’ Circular the Board of Trustees shall (A) make a unanimous recommendation that holders of APIF Securities accept the Offers, and (B) unanimously conclude that the Offers are fair, from a financial point of view, to holders of APIF Securities and the Board of Trustees shall not have withdrawn such recommendation or changed, modified or qualified such recommendation in a manner adverse to HCo, or taken any other action or made any other public statement or comments in connection with the Offers, the Amendment Resolution or the Arrangement inconsistent with such recommendation; (ix) the Interim Order has been granted in form and substance satisfactory to HCo and the Board of Trustees, each acting reasonably, and shall not have been set aside or varied in any manner unacceptable to HCo and the Board of Trustees, each acting reasonably, on appeal or otherwise; and (x) a Form F-4 in respect of the Offers has been declared effective by the SEC and shall not be the subject of any stop order, and no proceedings seeking a stop order shall be pending before or by the SEC; (c) The Offers shall expire not earlier than 11:59 p.m. (local time) on the 35th day (the “Expiry Time”) after the date of mailing of the Offers to the holders of APIF Securities; (d) The Bid Circular shall be prepared in compliance with Securities Laws. The Trustees’ Circular shall be prepared by the Board of Trustees in compliance with Securities Laws; (e) The Board of Trustees shall defer the separation time under the Rights Plan and on or immediately prior to the Take-Up Time or such earlier time as HCo may request and waive, suspend the operation of or otherwise render the Rights Plan inoperative or ineffective as regards to the Offers, the Compulsory Acquisition, the Transaction and matters contemplated in this Agreement; (f) Each of HCo and the Board of Trustees shall provide in a timely manner to the other for inclusion in the Bid Circular and Trustees’ Circular, and any amendments or supplements thereto, such information regarding the other party as is required by Securities Laws to be included in the Bid Circular and Trustees’ Circular or is required for the preparation of the Bid Circular and Trustees’ Circular; and (g) Subject to the satisfaction of the conditions set forth in Schedule “C” and the terms hereof, HCo shall, as soon as is practicable in the circumstances and in any event within the time periods required by Securities Laws, accept for payment and take-up and pay for all APIF Securities deposited and not withdrawn under the Offers.
Appears in 3 contracts
Samples: Support Agreement (Hydrogenics Corp), Support Agreement (Hydrogenics Corp), Support Agreement (Hydrogenics Corp)
The Offers. Subject (a) Offeror shall promptly publicly announce its intention to make offers and, subject to the terms and conditions set forth in this Agreement, shall commence offers, as promptly as practicable, in accordance with the Securities Laws, including the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), to purchase all of the outstanding Class A Shares (the “Class A Offer”) and to purchase all of the outstanding Common Shares (the “Common Share Offer” and, together with the Class A Offer, the “Offers”), including all Common Shares which may become outstanding pursuant to the exercise of stock options (“Options”) and stock appreciation rights (“SARs”) granted pursuant to the Corporation’s stock incentive plan, as amended from time to time (the “Stock Incentive Plan”) prior to the date hereof. Offeror covenants and agrees to make the Offers on and subject to the terms and conditions of this Agreement (including, for greater certainty, the conditions set forth in Schedule “C”), as part a cash consideration of the Transaction, HCo agrees to make an offer to purchase all of the outstanding Units, Series 1 Debentures US$15.25 for each Class A Share and Series 2 Debentures (collectively, the “APIF Securities”) at the applicable Offer Price per APIF Security Common Share (the “OffersOffer Consideration”). The terms “Class A Offer”, which terms “Common Share Offer” and “Offers” shall include any one or more changes or variations amendments to, or extensions of, such Offers) on offer or offers made in accordance with the following terms and conditions:of this Agreement, including, without limitation, any removal or waiver of any condition or extension of the date by which Shares may be deposited.
(ab) HCo shall mail or cause to be mailed to all holders of APIF Securities, as soon as reasonably practicable following satisfaction of the conditions set forth below, the Offers, which The Offers shall be made by way of a take-over bid circular in accordance with Securities Laws and Corporate Laws and, as provided in such legislation, shall expire no earlier than 12:01 a.m. (local time) on the 36th calendar day after the day (the “Bid CircularMailing Date”) that the Offers are mailed to Stockholders, subject to the right of Offeror to extend in compliance accordance with Securities Laws the Securities Act period during which Shares may be deposited under the Offers (Ontariosuch time, as it may be changed as a result of any such extension, is herein referred to as the “Expiry Time”). Without limiting the generality of the foregoing, Offeror may (i) and all other applicable securities lawsextend the Offers for any period required by any rule, regulations and rules and regulation, interpretation or position of the policy statements, orders and rulings of Canadian and United States securities regulatory authorities Securities and Exchange Commission (the “Securities LawsSEC”) or the staff thereof and which (ii) after the acceptance of Shares pursuant to the Offers, extend the Offers for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act. The terms of the Offers shall comply with the terms of this Agreement. The Offers shall be subject only to the conditions set forth in Schedule “C” hereto; A. Offeror agrees that, provided all of the Board conditions to the Offers set forth in Schedule A have been satisfied or waived by Offeror, Offeror shall take up and pay for all of Trustees or its Representatives have provided the Shares tendered under the Offers as soon as reasonably possible and in any event not later than three Business Days following the time at which it becomes entitled to HCo a reasonably completed Bid Circular, in both English and French languages, that complies in all material respects with take up such Shares under the Offers pursuant to Securities Laws (including and Corporate Laws. If any information pertaining to HCo, APIF and pro forma financial statements). HCo shall not be required to make the Offers (i) in any jurisdiction where it would be illegal to do so, (ii) in any jurisdiction other than Canada and the United States, or (iii) if the mailing has not occurred prior to the Bid Circular Mailing Date;
(b) The mailing of the Bid Circular shall be conditional on the following matters, all of which conditions are intended to be for the sole benefit of HCo and any of which can be waived in whole or in part in its sole discretion without prejudice to any other right it may have under this Agreement:
(i) this Agreement shall not have been terminated pursuant to Article 5;
(ii) the Board of Trustees shall have provided HCo the lists referred to in Section 4.1(a)(vi);
(iii) as of the date the Offers are to be made, there shall be no breach of or non-compliance with any material covenant, agreement or obligation of the Board of Trustees contained herein (in any case, as determined by HCo, acting reasonably);
(iv) no circumstance, fact, change, event or occurrence shall have occurred or come into existence that would render it impossible for one or more of the conditions set out on forth in paragraph (f) of Schedule A (“C” hereto or in the Divestiture Agreement to be satisfied;
(v) no cease trade order, injunction or other prohibition under applicable Law shall exist against HCo (A) making the Offers as contemplated herein, (B) taking-up or paying for APIF Securities deposited under the Offers, (C) completing the Compulsory Acquisition, (D) completing the Arrangement, or (E) completing the transactions as contemplated in the Divestiture Agreement;
(vi) the Board of Trustees shall have complied in all respects with its covenants in this Agreement;
(vii) each of the representations and warranties contained in Sections 3.1(aMAE Condition”), 3.1(bparagraph (g) and 3.1(dof Schedule A (“Banking Restriction Condition”) shall be true and correct in all material respects or paragraph (k) of Schedule A (“Default Condition”) have not been satisfied or waived by the Offeror as of the date of the mailing of the Bid Circular with the same effect as if made at and as of the date of this Agreement and the date of the mailing of the Bid Circular (Expiry Time but all other than such representations that are made as of a specified date, which shall be true and correct as of such date);
(viii) that the trustees’ circular (the “Trustees’ Circular”) prepared, and approved in final form, by the Board of Trustees shall be made available by the Board of Trustees to be mailed to holders of APIF Securities at the same time, and in the same package, as the Bid Circular and that in the Trustees’ Circular the Board of Trustees shall (A) make a unanimous recommendation that holders of APIF Securities accept the Offers, and (B) unanimously conclude that the Offers are fair, from a financial point of view, to holders of APIF Securities and the Board of Trustees shall not have withdrawn such recommendation or changed, modified or qualified such recommendation in a manner adverse to HCo, or taken any other action or made any other public statement or comments in connection with the Offers, the Amendment Resolution or the Arrangement inconsistent with such recommendation;
(ix) the Interim Order has been granted in form and substance satisfactory to HCo and the Board of Trustees, each acting reasonably, and shall not have been set aside or varied in any manner unacceptable to HCo and the Board of Trustees, each acting reasonably, on appeal or otherwise; and
(x) a Form F-4 in respect of the Offers has been declared effective by the SEC and shall not be the subject of any stop order, and no proceedings seeking a stop order shall be pending before or by the SEC;
(c) The Offers shall expire not earlier than 11:59 p.m. (local time) on the 35th day (the “Expiry Time”) after the date of mailing of the Offers to the holders of APIF Securities;
(d) The Bid Circular shall be prepared in compliance with Securities Laws. The Trustees’ Circular shall be prepared by the Board of Trustees in compliance with Securities Laws;
(e) The Board of Trustees shall defer the separation time under the Rights Plan and on or immediately prior to the Take-Up Time or such earlier time as HCo may request and waive, suspend the operation of or otherwise render the Rights Plan inoperative or ineffective as regards to the Offers, the Compulsory Acquisition, the Transaction and matters contemplated in this Agreement;
(f) Each of HCo and the Board of Trustees shall provide in a timely manner to the other for inclusion in the Bid Circular and Trustees’ Circular, and any amendments or supplements thereto, such information regarding the other party as is required by Securities Laws to be included in the Bid Circular and Trustees’ Circular or is required for the preparation of the Bid Circular and Trustees’ Circular; and
(g) Subject to the satisfaction of the conditions set forth in Schedule A shall have been satisfied or waived, then Offeror shall extend the Expiry Time for the duration of the applicable Cure Period(s). Offeror’s obligations set forth in the immediately preceding sentence shall be without prejudice to its other rights and remedies under this Agreement, including its right to terminate this Agreement on bases other than the failure of the MAE Condition, Banking Restriction Condition and/or Default Condition to have been satisfied or waived. “CCure Period” and shall mean, in the terms hereofcase of a failure of the Banking Restriction Condition, HCo shall10 days from the Expiry Time, or in the case of the failure of the MAE Condition and/or Default Condition, such period as is necessary to allow the cure periods set forth in Sections 6.1(b)(ii), (d) and/or (f), as soon as is practicable in the circumstances and in any event within the time periods required by Securities Lawscase may be, accept for payment and take-up and pay for all APIF Securities deposited and not withdrawn under the Offersto expire.
Appears in 1 contract
Samples: Support Agreement (Stanley Works)
The Offers. Subject to the terms and conditions of this Agreement (including, for greater certainty, the conditions set forth in Schedule “C”), as part of the Transaction, HCo agrees to make an offer to purchase all of the outstanding Units, Series 1 Debentures and Series 2 Debentures (collectively, the “APIF Securities”) at the applicable Offer Price per APIF Security (the “Offers”, which terms shall include any one or more changes or variations to, or extensions of, such Offers) on the following terms and conditions:
(a) HCo Promptly upon the occurrence of each Offer Termination Date the Borrower shall mail or cause to be mailed to all holders of APIF Securities, as soon as reasonably practicable following satisfaction of the conditions set forth below, the Offers, which Offers shall be made by way of a take-over bid circular (the “Bid Circular”) in compliance with the Securities Act (Ontario) and all other applicable securities laws, regulations and rules and the policy statements, orders and rulings of Canadian and United States securities regulatory authorities (the “Securities Laws”) and which Offers shall be subject give notice to the conditions set forth in Schedule “C” hereto; provided Junior Agent (who shall notify the Board of Trustees or its Representatives have provided to HCo a reasonably completed Bid Circular, in both English and French languages, Junior Lenders) that complies in all material respects with Securities Laws (including any information pertaining to HCo, APIF and pro forma financial statements). HCo shall not be required to make the Offers (i) in any jurisdiction where it would be illegal to do so, (ii) in any jurisdiction other than Canada and the United States, or (iii) if the mailing same has not occurred prior to the Bid Circular Mailing Date;occurred.
(b) The mailing Promptly upon (and in any event within 14 days after the Unconditional Date) acquisition (including by virtue of acceptances to an Offer or by contracting to acquire) by it of 90 per cent. in value of the Bid Circular class of the share capital in Target to which each Offer relates, the Borrower shall be conditional on implement the following matters, all procedures set out in Section 429 of which conditions are intended the Companies Xxx 0000 and use its reasonable endeavours to be for acquire 100 per cent. of the sole benefit issued share capital of HCo and any Target of which can be waived in whole or in part in that class within 6 weeks of its sole discretion without prejudice to any other right it may have under this Agreementimplementation of such procedure.
(c) The Borrower undertakes that:
(i) this Agreement without the prior agreement of the Arranger and the Majority Junior Lenders it will not:
(A) amend or vary in any material respect any material term or condition of an Offer other than by virtue of any extension of the time for acceptance of that Offer permitted under paragraph (d) below;
(B) agree to, or take any step to, reduce the condition in any Offer relating to the required minimum percentage of valid acceptances of Shares to which that Offer relates to less than 90 per cent. of that class of Shares;
(C) take or permit to be taken any step as a result of which the offer price stated in an Offer is, or may be required to be, increased beyond the level agreed between the Borrower and the Junior Lenders from time to time; or
(D) issue or allow to be issued any press release or other publicity, the text of which has not been previously agreed with the Arranger, which makes reference to the Facility or to some or all of the Junior Finance Parties unless the publicity is required by law, the Code or any stock exchange (in which case the Borrower shall not have been terminated pursuant to Article 5notify the Junior Agent and the Junior Lenders as soon as practicable upon becoming aware that the publicity is required);
(ii) in all material respects relevant in the Board context of Trustees shall have provided HCo an Offer, it will comply with the lists referred Code (subject to in Section 4.1(a)(viany applicable waivers by the Panel);, the Financial Services Xxx 0000, the Companies Xxx 0000 and all other applicable statutes, laws and regulations; and
(iii) it will keep the Arranger informed as to the status and progress of the date Offers and, in particular, will from time to time and promptly on request give to the Offers are Arranger reasonable details as to be made, there the current level of acceptances of each Offer (including a copy of every certificate delivered by the receiving agent to the Borrower and/or its advisers pursuant to the Code) and such other matters relevant to each Offer as the Arranger may reasonably request.
(d) The Borrower shall be no breach not extend the time for the acceptance of or non-compliance with any material covenant, agreement or obligation an Offer without the prior written consent of the Board of Trustees contained herein (in any case, as determined by HCo, acting reasonably);
(iv) no circumstance, fact, change, event or occurrence shall have Arranger and Majority Junior Lenders if anything has occurred or come into existence that would render it impossible for one or more of the conditions set out on Schedule “C” hereto or in the Divestiture Agreement to be satisfied;
(v) no cease trade order, injunction or other prohibition under applicable Law shall exist against HCo (A) making the Offers as contemplated herein, (B) taking-up or paying for APIF Securities deposited under the Offers, (C) completing the Compulsory Acquisition, (D) completing the Arrangement, or (E) completing the transactions as contemplated in the Divestiture Agreement;
(vi) the Board of Trustees shall have complied in all respects with its covenants in this Agreement;
(vii) each of the representations and warranties contained in Sections 3.1(a), 3.1(b) and 3.1(d) shall be true and correct in all material respects as of the date of the mailing of the Bid Circular with the same effect as if made at and as of since the date of this Agreement and the date of the mailing of the Bid Circular (other than such representations that are made as of a specified date, which shall be true and correct as of such date);
(viii) that the trustees’ circular (the “Trustees’ Circular”) prepared, and approved in final form, by the Board of Trustees shall be made available by the Board of Trustees to be mailed to holders of APIF Securities at the same time, and in the same packageor, as the Bid Circular case may be, the last extension of the time for the acceptance of that Offer which has had, or could reasonably be expected to have, a material adverse effect on the assets, business, financial condition or prospects of the Target Group and which could reasonably be expected to have a material adverse effect on the ability of the Obligors to perform their obligations under the Finance Documents when compared to the position that would have applied had the material adverse effect in relation to the Trustees’ Circular Target Group not occurred. In any event, if the Board Borrower is able to extend the time for the acceptance of Trustees shall (A) make a unanimous recommendation that holders of APIF Securities accept the Offersan Offer, and (B) unanimously conclude that the Offers are fair, from a financial point of view, to holders of APIF Securities and the Board of Trustees it shall not have withdrawn such recommendation or changed, modified or qualified such recommendation in a manner adverse to HCo, or taken any other action or made any other public statement or comments in connection with do so unless it also extends the Offers, time for the Amendment Resolution or the Arrangement inconsistent with such recommendation;
(ix) the Interim Order has been granted in form and substance satisfactory to HCo and the Board of Trustees, each acting reasonably, and shall not have been set aside or varied in any manner unacceptable to HCo and the Board of Trustees, each acting reasonably, on appeal or otherwise; and
(x) a Form F-4 in respect acceptance of the Offers has been declared effective by other Offer for the SEC and shall not be the subject of any stop order, and no proceedings seeking a stop order shall be pending before or by the SEC;
(c) The Offers shall expire not earlier than 11:59 p.m. (local time) on the 35th day (the “Expiry Time”) after the date of mailing of the Offers to the holders of APIF Securities;
(d) The Bid Circular shall be prepared in compliance with Securities Laws. The Trustees’ Circular shall be prepared by the Board of Trustees in compliance with Securities Laws;same period.
(e) The Board Borrower shall give the Junior Agent and the Arranger not less than five Business Days prior written notice of Trustees any proposed extension of the time for the acceptance of the Offers, together with a certificate signed by two directors of the Borrower confirming that as at the date of the certificate (which shall defer not be more than 10 Business Days before the separation time under current expiry date of the Rights Plan and on or immediately prior Offers), to the Take-Up Time best of their knowledge and belief (after reasonable enquiry) no material adverse effect in relation to the Target Group of the kind described in paragraph (d) above has occurred.
(f) If the Borrower becomes aware (whether through notice from the Arranger, the Junior Agent or such earlier time as HCo may request and waiveany Junior Lender or otherwise) of a circumstance or event which is or could reasonably be construed to be covered by any condition of the Offers which, suspend if not waived, would entitle the operation of or otherwise render Borrower (with the Rights Plan inoperative or ineffective as regards Panel's consent, if needed) to lapse the Offers, the Compulsory AcquisitionBorrower shall promptly notify the Arranger and the Junior Agent and, if the Arranger and the Majority Junior Lenders, acting reasonably, state that in their opinion such circumstance or event would adversely affect the ability of the Group to comply with its obligations under the Finance Documents (when compared to the position that would have applied had the circumstance or event not occurred), the Transaction Borrower shall promptly request the Panel to confirm (and matters contemplated shall use its best endeavours to ensure that the Panel does confirm, including the exercise in this Agreement;
(ffull of all rights of appeal) Each of HCo and that the Board of Trustees shall provide in a timely manner Panel will not object to the other for inclusion in the Bid Circular and Trustees’ Circular, and any amendments or supplements thereto, such information regarding the other party as is required by Securities Laws to be included in the Bid Circular and Trustees’ Circular or is required for the preparation lapsing of the Bid Circular and Trustees’ Circular; and
(g) Subject to Offers as a result of the non-satisfaction of that condition. If the conditions set forth Panel gives a confirmation substantially in Schedule “C” those terms, the Borrower shall not waive that condition or treat it as fulfilled and shall declare both Offers lapsed at the terms hereof, HCo shall, as soon as is practicable in the circumstances and in any event within the time periods required by Securities Laws, accept for payment and take-up and pay for all APIF Securities deposited and not withdrawn under the Offersearliest opportunity.
Appears in 1 contract
Samples: Junior Mortgage Loan Facility (Wilshire Real Estate Investment Trust Inc)
