The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cimco Inc /De/), Agreement and Plan of Merger (Cimco Inc /De/), Agreement and Plan of Merger (Hanna M a Co/De)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7, as promptly as reasonably practicable, and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not any event no later than July 25, 2022 (subject to the first business day after execution of this AgreementCompany having timely provided any information required to be provided by it pursuant to Section 1.2), the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementand Parent shall cause Purchaser to, commence a tender offer (within the "meaning of Rule 14d-2 under the Exchange Act) the Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall obligations of Purchaser, and of Parent to cause Purchaser, to accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer shall be subject to (i) the satisfaction of the Minimum Condition (as defined in Exhibit D hereto) and (ii) the satisfaction or waiver by Purchaser of each of the other conditions set forth in Annex A heretoExhibit D hereto (together with the Minimum Condition, including the condition that a number “Offer Conditions”). The obligation of Shares representing not less than a majority Purchaser to accept for payment shares of the Shares on a fully diluted basis shall have been (other than Excluded Shares) validly tendered (and not withdrawn prior validly withdrawn) pursuant to the expiration date Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (the "Minimum Condition"and shall not be subject to any other conditions). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right right, in its sole discretion, to (A) increase the price per Share payable in Offer Price by increasing the Cash Consideration, (B) waive any Offer Condition or to make (C) amend, modify or supplement any of the other changes in the terms and or conditions of the Offer; PROVIDEDOffer prior to the Acceptance Time to the extent not inconsistent with the terms of this Agreement, HOWEVER, except that, unless previously approved otherwise provided by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser mayAgreement, without the consent of the Company, Purchaser shall not (i1) reduce the Offer Price or increase the Offer Price by an increment of less than $0.25 per share, (2) change the form of consideration payable in the Offer, (3) reduce the number of Shares sought to be purchased in the Offer, (4) waive, amend or change the Minimum Condition or the condition set forth in clause (g) of Exhibit D, (5) add to the Offer Conditions, (6) extend the expiration of the Offer ifexcept as required or permitted by Section 1.1(b), at (7) provide for any “subsequent offering period” within the scheduled expiration date meaning of Rule 14d-11 promulgated under the Exchange Act or (8) amend, modify or supplement any Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the consummation of the Offer or prevent, materially delay or impair the ability of Parent or Purchaser to consummate the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent Merger or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerother Contemplated Transactions.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (La Jolla Pharmaceutical Co), Agreement and Plan of Merger (Innoviva, Inc.), Agreement and Plan of Merger (La Jolla Pharmaceutical Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1, Merger Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the twentieth (20th) day from and including the date of initial public announcement of this Agreement). The obligation of Merger Sub to commence the Offer shall be subject only to the condition that none of the events or conditions set forth in clause (c) of Annex A hereto shall have occurred and be existing, then, continuing (and not later than the first business day after execution of this Agreement, the waived by Parent shall issue a public announcement of the execution of this Agreementor Merger Sub in their sole discretion), and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser Merger Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Offer shall be subject only to the satisfaction (or waiver by Parent or Merger Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Merger Sub expressly reserves the right to increase waive any conditions to the price per Share payable Offer or change the terms of the Offer except that, without the prior written consent of the Company, Merger Sub may not waive the condition in clause (a) of Annex A (the “Minimum Condition”) or the conditions in clause (b) of Annex A, and no change in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which (i) decreases the price per Share Offer Price payable in the Offer, which (ii) changes the form of consideration to be paid in the Offer, which (iii) reduces the maximum number of Shares to be purchased in the OfferOffer or the minimum number of Shares contemplated by the Minimum Condition, which (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto, hereto or which broadens otherwise modifies the scope conditions set forth in such Annex A or (v) amends any other term of such conditions, which increases the minimum number of Shares which must be tendered as Offer in a condition manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment and payment for shares on the Acceptance Date, the “Acceptance Time”) or (in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority case of Shares being accepted tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof, in any case without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i). Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for payment or paid any and all Shares that Merger Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Flir Systems Inc), Agreement and Plan of Merger (Flir Systems Inc), Agreement and Plan of Merger (Icx Technologies Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution provisions of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not as promptly as practicable but in no event later than the fifth business day after from and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the execution Offer. The 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 Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (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 of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the Purchaser event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, subject at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the provisions terms and conditions of the Offer and this Agreement, commence a tender offer (the "Offer") Merger Sub shall, and Parent shall cause Merger Sub to, pay for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been Stock validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions Merger Sub becomes obligated to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to immediately after the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority expiration of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 to exceed ten business days beyond the latest expiration date and in no event ending after December 31, 1997, if Parent reasonably believes that would otherwise be permitted under clause (i) of this sentence if, on the date as a result of such extension, extension 90% or more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Sun Healthcare Group Inc), Agreement and Plan of Merger (Sun Healthcare Group Inc), Agreement and Plan of Merger (Regency Health Services Inc)
The Offer. (a) Parent shall not, and shall cause Sub not to, commence (within the meaning of Rule 14d-2(a) of the 0000 Xxx) the Offer prior to the date that is 14 days after the date hereof. Provided that this Agreement shall not have been terminated in accordance with Article IX Section 10.01, Parent shall cause Sub to, and none Sub shall, commence (within the meaning of Rule 14d-2(a) of the events or conditions set forth 0000 Xxx) the Offer as promptly as practicable after such date (but in Annex A shall have occurred and be existing, then, not no event later than ten (10) Business Days following such date or such later date as the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"parties may mutually agree in writing), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser Sub shall be obligated to accept for payment and to, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the 1934 Act (relating to Sub’s obligation to pay for all or return tendered Shares which have been validly tendered and not withdrawn pursuant to promptly after the Offer at the earliest time following expiration termination or withdrawal of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for paymentOffer), purchase and pay for any Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (as it may be extended in accordance with this Agreement), subject to the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser condition that there shall be deemed to have been validly tendered and not withdrawn (excluding Shares tendered pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable guaranteed delivery procedures that have not yet been delivered in the Offer settlement or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope satisfaction of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares guarantee) in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends accordance with the terms of the Offer (including any prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then beneficially owned by Parent and its Affiliates, represents at least a majority of the total number of Shares then outstanding on a Fully Diluted Basis (the “Minimum Condition”) and to the other conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding I (together with the foregoingMinimum Condition, the Purchaser may, without “Offer Conditions”) and to no other conditions. Subject to the consent prior satisfaction or waiver (except for the Minimum Condition) of the CompanyOffer Conditions, promptly after the later of (i) extend the earliest date as of which Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer if, at and (ii) the scheduled expiration earliest date as of which each of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are Offer Conditions has been satisfied, or waived by Parent or Sub, Sub shall (iiand Parent shall cause Sub to) extend consummate the Offer in accordance with its terms and accept for a period payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of not more than 15 business days beyond Shares for payment pursuant to the latest expiration date that would otherwise be permitted under clause Offer pay the Offer Price (iwithout interest) in compliance with Rule 14e-1(c) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been 1934 Act for each Share validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that The obligation of Sub (and of Parent to cause Sub) to accept for payment, and pay the conditions set forth in Annex A are Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (except for the sole benefit Minimum Condition) by Parent or Sub, of each of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the partiesOffer Conditions. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in pursuant to the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Mueller Industries Inc), Agreement and Plan of Merger (Tecumseh Products Co), Agreement and Plan of Merger (Tecumseh Products Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1, Parent shall cause Sub to, and none Sub shall, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof (the date on which the Offer is commenced being referred to herein as the “Commencement Date”). The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the events or Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex A shall have occurred and be existingI hereto (the “Offer Conditions”). Subject to the prior satisfaction or, thento the extent permitted, not later than waiver by Parent or Sub of the first business day after execution of this AgreementOffer Conditions, the Parent shall issue a public announcement of the execution of this Agreementcause Sub to, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser Sub shall, subject to consummate the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together Offer in accordance with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company its terms and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at and pay the earliest time Offer Price in exchange for each such Share promptly following expiration such acceptance in compliance with Rule 14e-1(c) of the Offer that all conditions to Exchange Act (the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept time at which Sub first accepts any Shares for payment, purchase and pay for Shares tendered payment pursuant to the Offer being referred to herein as the “Acceptance Time”). The Offer shall be subject made by means of an offer to purchase (the conditions “Offer to Purchase”) that contains the terms set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered this Agreement and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")Conditions. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any of the Offer Conditions, to increase the price per Share payable in the Offer or Price and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, thatthat Sub shall not, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser mayParent shall cause Sub not to, without the prior written consent of the Company, (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) decrease the number of Shares sought in the Offer, (iv) waive or change the Minimum Condition, (v) impose additional conditions to the Offer or amend any of the Offer Conditions so as to broaden the scope of such Offer Condition, (vi) extend the Offer ifbeyond a date that is twenty-one (21) business days after commencement of the Offer or the last extension (in accordance with this Agreement), at the scheduled expiration date if any, of the Offer, any of whichever is later (the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time “Expiration Date”) except as such conditions are satisfiedset forth in this Agreement, or (iivii) extend otherwise amend any other term or condition of the Offer for in a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant manner materially adverse to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit holders of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferShares.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Somanetics Corp), Agreement and Plan of Merger (Somanetics Corp), Agreement and Plan of Merger (Covidien PLC)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied occurred or waived by be continuing, Purchaser shall commence the PurchaserOffer as promptly as reasonably practicable but in no event later than seven (7) business days after the date hereof. The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including (i) the condition (the "Minimum Condition") that a at least the number of Shares representing not less than tendered shall constitute a majority 50% plus one share of the sum of the number of then outstanding Shares on a fully diluted basis plus all Shares issuable upon the exercise of the Outstanding Options (as of the business day preceding the Initial Expiration Date) and Outstanding Warrants (as of the business day preceding the Initial Expiration Date) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and (ii) the "Minimum Condition")satisfaction or waiver of each of the other conditions set forth in Annex A hereto. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition set forth in Annex A, to increase the price per Per Share payable in the Offer or Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made which decreases the price per Per Share payable in the OfferAmount, which changes the form of consideration to be paid in the Offerpayable, which reduces the maximum number of Shares to be purchased in the Offer, which Offer or imposes or modifies (other than to waive) conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition . Subject to the acceptance for payment terms of the Offer and payment for shares in this Agreement and the Offer, which waives satisfaction or waiver of the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 scheduled expiration date, which shall initially be 20 business days after following the date of commencement of the Offer, or which otherwise amends and the terms of the Offer (including any of the other conditions set forth in Annex A) in a manner that is materially adverse A hereto, Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to holders the Offer as soon as practicable after such expiration date of Sharesthe Offer (such date, as extended pursuant to this Agreement, the "Share Acceptance Date"). Notwithstanding the foregoing, Purchaser shall be entitled to extend the Offer from time to time without the consent of the Company: (i) until no later than January 11, 2002 if at the initial expiration of the Offer, which will be 12:00 midnight eastern standard time on the twentieth business day following commencement of the Offer, as may be extended (the "Initial Expiration Date"), the Minimum Condition is not satisfied, or (ii) until no later than December 31, 2001, if at the Initial Expiration Date, the Minimum Condition is satisfied, but any other condition to the Offer is not satisfied or waived. Purchaser agrees to extend the Offer from time to time until not later than December 31, 2001, if at the then scheduled expiration date, the Minimum Condition has not been satisfied or waived as permitted by this Agreement. Any extension of the Offer pursuant to this Section 2.01 shall not, without the written consent of the Company, exceed the number of days that Purchaser reasonably believes will be necessary so that the Minimum Condition will be satisfied. In addition, Purchaser may, without the consent of the Company, (i) extend the Offer if, at the any then scheduled expiration date of the OfferOffer for any period required by applicable rules, any regulations, interpretations or positions of the conditions Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfiedOffer or for any period required by applicable law. If the Initial Expiration Date has occurred, or (ii) extend but fewer than 90% of the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn as of the Initial Expiration Date, Purchaser may provide for a subsequent offering period (as contemplated by Rule 14d-11 under the Securities Act of 1934, as amended (the "Exchange Act")) as long as providing for the subsequent offering period does not require the extension of the initial offer period under applicable rules and regulations of the SEC, which subsequent offering period shall not exceed 20 business days. 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 the Company. On or prior to the dates that Purchaser becomes obligated to accept for payment and pay for Shares pursuant to the Offer, Holdings shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to accept for payment and pay for pursuant to the Offer. It is agreed that 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 set forth in Annex A are for the sole benefit of the Parent Offer. Notwithstanding the foregoing and subject to the applicable rules of the SEC and the Purchaser terms and may be asserted by the Parent or the Purchaser regardless conditions of the circumstances giving rise Offer, Purchaser expressly reserves the right to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, delay payment for Shares in order to comply in whole or in part at any time and from time to time, in its sole discretionwith applicable laws. The failure by the Parent or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any Any such right and each such right delay shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by effected in compliance with Rule 14e-1(c) under the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferExchange Act.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Comstock Resources Inc), Agreement and Plan of Merger (Comstock Resources Inc), Agreement and Plan of Merger (Devx Energy Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01 hereof and none of subject to the events or conditions set forth provisions hereof, Buyer shall cause Merger Sub promptly (but in Annex A shall have occurred and be existing, then, not no event later than the first five business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of days following the public announcement of the execution terms of this Agreement, ) to commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act")) an offer to purchase all outstanding shares of common stock of Xxxxx, between par value $10.00 per share (the Company and First Interstate Bank of California, as Rights Agent (collectively, "Xxxxx Common Stock" or the "Shares") ), at a price of $10.50 152.00 per Share, net to the seller in cashcash (the "Offer"). The Purchaser Subject to the satisfaction of the Offer Conditions (as defined below) and the terms and conditions of this Agreement, Merger Sub shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration as soon as practicable under applicable law. The obligation of Merger Sub to consummate the Offer that all and to accept for payment and to pay for any Shares tendered pursuant thereto shall be subject to only those conditions to the Offer set forth in Annex A hereto shall have been satisfied (the "Offer Conditions"), which are for the sole benefit of Buyer and Merger Sub and may be asserted by Buyer or Merger Sub or waived by the PurchaserBuyer or Merger Sub, in whole or in part, at any time and from time to time in their sole discretion. The obligation Xxxxx agrees that no Shares held by Xxxxx or any of the Purchaser its subsidiaries will be tendered to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn Merger Sub pursuant to the Offer. The Purchaser expressly reserves Merger Sub will not, without the right to increase prior written consent of Xxxxx, (i) decrease or change the price per Share payable in the Offer amount or to make any other changes in the terms and conditions form of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share consideration payable in the Offer, which changes (ii) decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for sought pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of (iii) impose additional conditions to the Offer, or which otherwise amends (iv) change the terms of conditions to the Offer (including any of the conditions set forth provided, that Buyer or Merger Sub in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, their sole discretion may waive any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, Offer) or (iiv) make any change to any other provision of the Offer that is materially adverse to the holders of the Shares. Merger Sub shall be entitled to extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence ifin accordance with applicable law, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that if the conditions set forth in Annex A are for the sole benefit satisfied as of any scheduled expiration date of the Parent and Offer, the Purchaser and Offer may not be asserted extended by more than ten business days in the Parent or aggregate, except with the Purchaser regardless prior written consent of the circumstances giving rise to any such condition (including any action Company or inaction as required by law. If the Purchaser, unless any such action conditions set forth in Annex A are not satisfied or inaction waived by the Purchaser would constitute a breach by the Purchaser Merger Sub as of any of its covenants under this Agreement) or scheduled expiration date, Merger Sub may be waived by extend the Parent or the Purchaser, in whole or in part at any time and Offer from time to time, in its sole discretion. The failure by time until the Parent or the Purchaser at any time to exercise any earlier of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any consummation of the foregoing conditions (including, without limitation, Offer or twenty business days following the satisfaction original expiration date of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Bryan Steam Corp), Agreement and Plan of Merger (Burnham Corp), Agreement and Plan of Merger (Bryan Steam Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1, Parent shall cause Sub to, and none Sub shall, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer no later than May 18, 2009 (the date on which the Offer is commenced being referred to herein as the “Commencement Date”). The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the events or Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex A shall have occurred and be existingI hereto (the “Offer Conditions”). Subject to the prior satisfaction or, thento the extent permitted, not later than waiver by Parent or Sub of the first business day after execution of this AgreementOffer Conditions, the Parent shall issue a public announcement of the execution of this Agreementcause Sub to, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser Sub shall, subject to consummate the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together Offer in accordance with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company its terms and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at and pay the earliest time Offer Price in exchange for each such Share promptly following expiration such acceptance in compliance with Rule 14e-1(c) of the Offer that all conditions to Exchange Act (the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept time at which Sub first accepts any Shares for payment, purchase and pay for Shares tendered payment pursuant to the Offer being referred to herein as the “Acceptance Time”). The Offer shall be subject made by means of an offer to purchase (the conditions “Offer to Purchase”) that contains the terms set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered this Agreement and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")Conditions. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any of the Offer Conditions, to increase the price per Share payable in the Offer or Price and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, thatthat Sub shall not, unless previously approved and Parent shall cause Sub not to, without the prior written consent of the Company (such consent to be authorized by the Company in writingBoard of Directors or a duly authorized committee thereof), no (i) decrease the Offer Price, (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes (iii) decrease the form number of consideration to be paid Shares sought in the Offer, which reduces (iv) waive or change the maximum number of Shares to be purchased in the OfferMinimum Condition, which imposes (v) impose additional conditions to the Offer in addition or amend any of the Offer Conditions so as to those set forth in Annex A hereto, which broadens broaden the scope of such conditionsOffer Condition, which increases (vi) extend the minimum number of Shares which must be tendered as Offer beyond a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period date that is twenty-one (21) business days after commencement of the Offer beyond 45 days after or the date of commencement last extension (in accordance with this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth in Sections 1.1(b) and 1.1(c), or which (vii) otherwise amends the terms amend any other term or condition of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to the holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Vnus Medical Technologies Inc), Agreement and Plan of Merger (Covidien PLC), Agreement and Plan of Merger (Covidien Group S.a.r.l.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1, as promptly as practicable following the date hereof and none of in any event within five (5) Business Days following the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution date of this AgreementAgreement (or such other later date as the parties may mutually agree in writing), Parent and Merger Sub (i) shall amend the Parent shall issue a public announcement of Offer to reflect the execution of this AgreementAgreement and the terms hereof, (ii) shall file an amendment to their Schedule TO, which amendment shall include an amended offer to purchase, form of transmittal letter, form of notice of guaranteed delivery and not later than all other necessary documents and exhibits with the fifth business day after Securities and Exchange Commission (the date “SEC”) and make all deliveries, filings, publications, mailings and telephonic notices required to be made in connection with the Offer under the federal securities Laws, including Regulations 14D and 14E of the public announcement Securities Exchange Act of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (including the "Company Rights Agreement"), between the Company rules and First Interstate Bank of California, as Rights Agent (collectivelyregulations promulgated thereunder, the "Shares"“Exchange Act”) at a price of $10.50 per Share(such documents filed or required to be filed with the SEC and such other filings, net deliveries, mailings and notices, collectively and together with any amendments, exhibits or supplements thereto, the “Offer Documents”) and (iii) shall use their reasonable best efforts to consummate the seller in cashOffer. The Purchaser shall If the Offer is consummated, Parent will cause Merger Sub to accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration any shares of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares Company Common Stock tendered pursuant to the Offer shall be Offer, subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis (i) there shall have been be validly tendered and not withdrawn prior to the expiration of the Offer such number of shares of Company Common Stock that, when added to the shares of Company Common Stock already owned by Parent, Merger Sub and their Subsidiaries, would constitute at least a majority of the shares of Company Common Stock outstanding determined on a Fully Diluted Basis immediately prior to the date of expiration of the Offer (the "“Minimum Condition"). Solely for purposes of determining whether ”) and (ii) the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding I hereto (collectively with the foregoingMinimum Condition, the Purchaser may, without the consent of the Company, (i“Tender Offer Conditions”) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth satisfied or waived in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted writing by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferParent.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Pilgrims Pride Corp), Agreement and Plan of Merger (Gold Kist Inc.), Agreement and Plan of Merger (Gold Kist Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A no event shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent no circumstance shall issue exist which would result in a public announcement failure to satisfy any of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer or events set forth in Annex A hereto (the "Offer Conditions"), Purchaser shall have been satisfied or waived by amend the PurchaserOffer as soon as practicable after the date hereof, and in any event within five business days from the date hereof, (i) to increase the purchase price offered to $21.00 per Share, (ii) to modify the conditions of the Offer to conform to the Offer Conditions and (iii) to make such other amendments as are required to conform the Offer to this Agreement and provisions of applicable laws. The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date satisfaction of the Offer (the "Minimum Condition")Conditions. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right right, in its sole discretion, to increase waive any such condition (other than the price per Share payable Minimum Condition as defined in the Offer or to Conditions) and make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the OfferOffer (other than by adding consideration), which reduces the maximum number of Shares to be purchased in the Offer, which or imposes conditions to the Offer in addition to those set forth in Annex A heretoherein which are adverse to holders of the Shares. Purchaser covenants and agrees that, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition subject to the acceptance terms and conditions of this Agreement, including but not limited to the Offer Conditions, it will accept for payment and payment pay for shares in Shares as soon as it is permitted to do so under applicable law, subject to the prior satisfaction of the Offer Conditions. Notwithstanding the immediately preceding sentence, Purchaser may extend the Offer, which waives notwithstanding the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period prior satisfaction of the Offer beyond 45 Conditions, for up to five business days after the date of commencement and then thereafter on a day-to-day basis for up to another five business days, if as of the Offer, or which otherwise amends the terms expiration date of the Offer (including as a result of any extensions thereof), there shall have been tendered more than 80% but less than 90% of the outstanding Shares so that the Merger could not be effected without a meeting of the Company's stockholders in accordance with the applicable provisions of the DGCL; provided that, after the initial extension pursuant to this sentence, the Offer shall not be subject to any conditions other than (i) the conditions set forth in Annex Aclauses (a)(i) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend or (d)(ii) of the Offer for Conditions and (ii) the absence of any intentional breach by the Company of the representations, warranties, covenants or agreements set forth in this Agreement which has a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, Material Adverse Effect on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the OfferCorporation. It is agreed that the conditions set forth in Annex A Offer Conditions are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including other than any action or inaction by the Purchaser, unless any such action Purchaser or inaction by the Purchaser would constitute Parent constituting a breach by the Purchaser of any of its covenants under this Agreement) or or, except with respect to the Minimum Condition, may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by Purchaser shall terminate the Parent or the Purchaser at any time Offer upon termination of this Agreement pursuant to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerits terms.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (National Education Corp), Agreement and Plan of Merger (National Education Corp), Agreement and Plan of Merger (Nick Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth Section 8.1, as promptly as practicable (but in Annex A shall have occurred and be existing, then, not no event later than the first five business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of days following the public announcement of the execution of this Agreement), Sub will commence (within the Purchaser shallmeaning of Rule 14d-2 under the Securities Exchange Act of 1934, subject as amended (the "Exchange Act")), an offer to the provisions of this Agreement, commence a tender offer purchase (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") Shares at a price of $10.50 7.25 per Share, net to the seller in cashcash (the "Offer Consideration"). The Purchaser shall obligation to consummate the Offer and to accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall will be subject only to the those conditions set forth in Annex Exhibit A attached hereto, including . The Company agrees that no Shares held by the condition that a number Company or any of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly its Subsidiaries (as defined in Section 3.1) will be tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn Sub pursuant to the Offer. The Purchaser Sub expressly reserves the right right, in its sole discretion, to increase waive any condition set forth in Exhibit A, other than the price per Share payable Minimum Condition and the ESOP Condition (each as defined in the Offer or Exhibit A), and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner provided that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser maySub will not, without the prior written consent of the Company, (i) extend decrease or change the Offer if, at form of the scheduled expiration date of consideration payable in the Offer, any (ii) decrease the number of Shares sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) modify the conditions to the Purchaser's obligation Offer as set forth in Exhibit A in a manner adverse to purchase Shares shall not be satisfied until such time as such conditions are satisfiedthe holders of the Shares, (v) waive the Minimum Condition or the ESOP Condition or (iivi) make any other change in the terms of the Offer adverse to the holders of the Shares. The Offer will initially provide that the Offer will expire 20 business days after (and inclusive of) the date it is commenced. Sub agrees that, subject to the terms and conditions of the Offer and this Agreement, it will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law, provided that Sub shall have the right in its sole discretion to extend the Offer from time to time for a period up to an aggregate of not more than 15 business days beyond days, notwithstanding the latest expiration date prior satisfaction of the conditions set forth in Exhibit A, in the event that would otherwise be permitted under clause (i) at least 75% of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Company's outstanding Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It If, subject to the succeeding sentence, the Minimum Condition or the ESOP Condition is agreed that not satisfied or if the conditions set forth in Annex paragraphs B, C or E of Exhibit A are for not satisfied or, to the sole benefit extent permitted by this Agreement, waived by Sub as of the Parent and scheduled expiration date, Sub shall have the Purchaser and may be asserted by right in its sole discretion to extend the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and Offer from time to time, in its sole discretion. The failure by time until the Parent earlier of the consummation of the Offer or the Purchaser at any time termination of this Agreement. If the Minimum Condition, the ESOP Condition or the HSR Condition (as defined in Exhibit A) or the conditions set forth in paragraphs A, F or G of Exhibit A are not satisfied or, to exercise any the extent permitted by this Agreement, waived by Sub as of the foregoing rights shall scheduled expiration date, Sub will, unless it is manifestly apparent that such condition will not be deemed a waiver satisfied prior to the termination of any such right this Agreement, or Sub and each such right the Company shall be deemed an ongoing right which may be asserted at any time and otherwise agree in writing, extend the Offer from time to time. Any determination by time until the Parent earlier of the consummation of the Offer or the Purchaser with respect to any termination of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerthis Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Res Acquisition Corp), Agreement and Plan of Merger (Republic Engineered Steels Inc), Agreement and Plan of Merger (Republic Engineered Steels Inc)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01 and that none of the events or conditions set forth in Annex clause (iii) of Exhibit A hereto shall have occurred and or be existing, thenPurchaser shall, not and Parent shall cause Purchaser to, as promptly as practicable (but in no event later than the first seven (7) business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of days following the public announcement of the execution terms of this Agreement, ) commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementEXCHANGE ACT")) an offer to purchase all outstanding shares of common stock of the Company, without par value (the "SHARES"), between at a price (such price, or any higher price as may be paid in the Company and First Interstate Bank of California, as Rights Agent (collectivelyOffer, the "SharesOFFER PRICE") at a price of $10.50 22 per Share, net to the seller in cashcash (such tender offer, as it may be amended and supplemented from time to time as permitted under this Agreement, the "OFFER"). The obligation of Purchaser shall to consummate the Offer and to accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer thereto shall be subject to only the terms and conditions set forth in Annex this Agreement and to those conditions set forth in Exhibit A heretohereto (the "OFFER CONDITIONS"), including any of which (other than the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the Minimum Tender Condition (as defined in Exhibit A)) may be waived by Purchaser in its sole discretion. The initial expiration date of the Offer shall be the twentieth business day following the commencement of the Offer (determined in accordance with Rule 14d-1(e)(6) under the "Minimum Condition"Exchange Act). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in modify the terms and conditions of the Offer; PROVIDED, HOWEVER, except that, unless previously approved by without the Company in writingprior written consent of the Company, no Purchaser shall not (A) decrease the Offer Price or change may be made which decreases the price per Share form of the consideration payable in the Offer, which changes (B) decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for sought pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of (C) impose additional conditions to the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex AD) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of change the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, Offer or (iiE) extend make any other change in the terms or conditions of the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant which is adverse to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit holders of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferShares.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cunningham Graphics International Inc), Agreement and Plan of Merger (Automatic Data Processing Inc), Agreement and Plan of Merger (Automatic Data Processing Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01 and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer circumstances set forth in Annex A hereto shall have been satisfied occurred or waived by be existing, Purchaser agrees to, and Parent agrees to cause Purchaser to, commence, within the Purchasermeaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act"), the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the first public announcement of the execution hereof. The Parent and Purchaser agree that the right and obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including (the condition "Offer Conditions") that a (i) the number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer, combined with the Shares already owned by Parent, Purchaser or any of their affiliates, constitute at least 51% of the then outstanding Shares determined on a fully diluted basis (assuming the exercise of all options to purchase Shares and the conversion or exchange of all securities convertible or exchangeable into Shares but not assuming the conversion of the Nonvoting Shares into Shares) at the expiration of the Offer (the "Minimum Condition"). Solely for purposes of determining whether ) and (ii) the Minimum Condition has other conditions set forth in Annex A shall have been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, 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 OfferOffer Price, 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 alters the terms of the Minimum Condition, which waives the Minimum Condition, which otherwise modifies or amends the conditions to the Offer or any other term of the Offer in a manner that is adverse to the holders of the Shares or Nonvoting Shares, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, whichhereto or, except as hereinafter set forth provided in this Subsection 1.01(a)the next sentence, which extends the period of the Offer beyond 45 days after the expiration date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, so long as this Agreement has not been terminated in accordance with its terms, (i) extend the Offer ifOffer, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (ii) extend the Offer for a any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (iii) if all Offer Conditions are satisfied or waived but the number of Shares tendered is at least equal to 85%, but less than 90%, of the then outstanding number of Shares, extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 five business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence ifand (iv) extend the Offer until July 2, on 1999 unless (A) the date event of such extension, more than two-thirds but less than 90 percent default which would arise under Section 8.1(j) of the Loan Agreement (as defined below) because of Purchaser's purchase of Shares have been validly tendered and not properly withdrawn pursuant to the Offer has been waived or (B) the termination fee under Section 10.2(e) of the Loan Agreement has been reduced to $1.25 million or less (provided, that if Purchaser extends the Offer pursuant to this clause (iv), Purchaser shall be deemed to have irrevocably waived the condition set forth in paragraph (d) of Annex A, insofar as such paragraph relates to representations and warranties of the Company, and the condition set forth in paragraph (e) of Annex A), in the case of each of clauses (i) through (iv), subject in each case to the right of Parent, Purchaser or the Company to terminate this Agreement pursuant to the terms hereof. Parent and Purchaser agree that if at any scheduled expiration date of the Offer. It is agreed that , the Minimum Condition, the HSR Condition (as defined in Annex A) or the condition set forth in paragraph (d) of Annex A shall not have been satisfied, but at such scheduled expiration date all the conditions set forth in Annex A are for paragraphs (a), (b), (c), (e), (f), (g) and (h) shall then be satisfied, at the sole benefit request of the Parent and Company (confirmed in writing), Purchaser shall extend the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and Offer from time to time, subject to the right of Parent, Purchaser or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the terms and conditions of the Offer and this Agreement, Purchaser shall, and Parent shall cause Purchaser to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Purchaser becomes obligated to accept for payment and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer, and in its sole discretionany event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act. The failure by Offer Price shall, subject to applicable withholding of taxes, be net to the Parent or seller in cash, upon the Purchaser at any time terms and subject to exercise any the conditions of the foregoing rights shall Offer. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for Shares validly tendered on or prior to the expiration of the Offer and not be deemed a waiver of any such right and each such right withdrawn shall be deemed an ongoing right which may be asserted at any time subject only to the Offer Conditions. Parent shall not, and from time shall cause Purchaser not to, cause the Offer to time. Any determination by expire unless Parent terminates this Agreement prior to or on the Parent or the Purchaser with respect to any date of the foregoing conditions (including, without limitation, the satisfaction expiration of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Shopko Stores Inc), Agreement and Plan of Merger (Citigroup Inc), Agreement and Plan of Merger (Pamida Holdings Corp/De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events or conditions set forth in Annex A I hereto shall have occurred and be existing, then, not as promptly as practicable (but in no event later than five business days from the first business day after execution date hereof) Purchaser shall commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")), and Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, cause the Purchaser shallto commence and shall provide adequate financing for, subject an offer to the provisions of this Agreement, commence a tender offer (the "Offer") for purchase all of the outstanding shares of Common Stock, together with par value $1.00 per share (the "Shares"), of the Company (which shall include the Shares held pursuant to the Escrow Agreement referenced in Section 5.2 hereof), including the associated rights Preferred Stock Purchase Rights issued pursuant to the Rights Agreement dated as of December 5August 8, 19921986, as amended (the "Company Rights Agreement"), ) between the Company and First Interstate Bank of CaliforniaChemical Bank, as Rights Agent (collectively, the "SharesRights") ), at a price of $10.50 23.00 per Share, Share net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant cash (the "Offer") and, subject to the Offer at the earliest time following expiration conditions of the Offer that Offer, shall use all conditions reasonable efforts to consummate the Offer. Except where the context otherwise requires, all references herein to the Offer set forth in Annex A hereto Shares shall have been satisfied or waived by include the Purchaserassociated Rights. The obligation of the Purchaser to consummate the Offer and to accept for payment, purchase payment and to pay for any Shares tendered pursuant to the Offer thereto shall be subject to only those conditions set forth in Annex I hereto. The parties agree that, except for the Minimum Condition, the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A I are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaseror, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under except as provided in this Agreement) or , may be waived by the Parent or the Purchaser, in whole or in part part, at any time and from time to time, time in its sole discretion, in each case subject to the terms of this Agreement. The failure by the Parent or the Purchaser at any time to exercise any of the foregoing rights shall will not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances will not be deemed a waiver with respect to other facts or circumstances, and each such right shall will be deemed an ongoing right which that may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company or its subsidiaries will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Lilly Industries Inc), Agreement and Plan of Merger (Guardsman Products Inc), Agreement and Plan of Merger (Lilly Industries Inc)
The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Article IX and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events or conditions set forth in Annex A shall have occurred and be existingI hereto, then, not later than the first business day as promptly as reasonably practicable after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution terms of this Agreement, but in no event later than one week after the Purchaser shalldate hereof, subject to Acquisition shall (and Parent shall cause Acquisition to) commence (within the provisions meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), commence a tender an offer (the "Offer") for all of the outstanding shares of Common Stockcommon stock, together with the associated rights issued pursuant to the Rights Agreement dated as par value $.01 per share, of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company (individually a "Share" and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price for each Share of $10.50 per Share16.00, net to the seller in cashcash (the "Offer Price"). The Purchaser shall obligation of Acquisition to accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including (i) the condition that a number of Shares representing not less than a majority at least two-thirds of the Shares on a fully fully- diluted basis shall have been validly tendered basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and not withdrawn unvested Company Stock Options that vest prior to the expiration date Effective Time, but excluding any Shares held by the Company or any of the Offer its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Acquisition expressly reserves the right to increase the price per Share payable in the Offer Price or to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company in writing, and (ii) no change may be made which decreases the price per Share payable in the Offer, which that changes the form of consideration to be paid paid, decreases the price per Share or the number of Shares sought in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a)I, extends the period expiration date of the Offer beyond 45 days after the initial expiration date of commencement of the Offer, or which otherwise amends the terms of the Offer (including except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions set forth contained in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingI, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Acquisition shall accept for payment all Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It Offer as soon as it is agreed that the conditions set forth in Annex A are permitted to do so under applicable law and shall pay for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerpromptly thereafter.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Policy Management Systems Corp), Agreement and Plan of Merger (Computer Sciences Corp), Agreement and Plan of Merger (Computer Sciences Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex on Exhibit A hereto shall have occurred and be existingcontinuing, then, not as promptly as practicable but in no event later than the first five business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day days after the date of the public announcement of (on the execution date hereof or the following day) by Parent and the Company of this Agreement, the Purchaser Sub shall, subject to the provisions of this Agreementand Parent shall cause Sub to, commence a tender offer (within the "Offer") for all meaning of Rule 14d-2 under the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between the Company and First Interstate Bank of California, as Rights Agent (collectively), the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer. The Purchaser shall obligation of Sub to, and of Parent to cause Sub to, commence the Offer, conduct and consummate the Offer and accept for payment payment, and pay for all for, any Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex Exhibit A hereto(the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion). Sub expressly reserves the right, including subject to compliance with the condition that a Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Sub shall not (i) reduce the number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offer. The Purchaser expressly reserves , (ii) reduce the right Offer Price, (iii) add to increase or modify the price per Share Offer Conditions, (iv) except as provided in the next two sentences, extend the Offer, (v) change the form of consideration payable in the Offer or to make (vi) amend or alter any other changes in the terms and conditions term of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition any manner adverse to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period holders of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser Sub may, without the consent of the Company, (iA) extend the Offer, if at the scheduled or any extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Offer iffor any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (C) extend the Offer for up to ten business days if the Minimum Tender Condition (as defined in Exhibit A) has not been satisfied as of the scheduled expiration date of the Offer and (D) extend the Offer for any reason for up to two business days. Without limiting the right of Sub to extend the Offer pursuant to the immediately preceding sentence, in the event that (i) the Minimum Tender Condition has not been satisfied or (ii) any condition set forth in paragraph (a) of Exhibit A is not satisfied at the scheduled expiration date of the Offer, any Sub shall, and Parent shall cause Sub to, extend the expiration date of the conditions Offer in increments of five business days each until the earliest to occur of (x) the Purchaser's obligation satisfaction or waiver of the Minimum Tender Condition or such other condition, or Parent reasonably determines that any Offer Condition is not capable of being satisfied on or prior to purchase Shares December 29, 1998, (y) the termination 9 4 of this Agreement in accordance with its terms and (z) December 29, 1998; provided, however, that if any person or group (within the meaning of Section 13(d)(3) of the Exchange Act) has publicly made a Takeover Proposal (as defined in Section 6.02(a)) or disclosed in writing its intention to make a Takeover Proposal, Sub shall not be satisfied until such time as such conditions are satisfied, or (ii) required pursuant to this sentence to extend the Offer for a period of not more than 15 20 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on which such Takeover Proposal was publicly announced or such intention was disclosed if at the date end of such extension, more than two-thirds but less than 90 percent 20 business day period the Company has given Parent a Notice of Shares have been validly tendered and not properly withdrawn pursuant Superior Proposal with respect to the OfferTakeover Proposal. It is agreed that Subject only to the conditions set forth in Annex A are Exhibit A, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the sole benefit Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer. supplemented to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given 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 Sub agree to provide the Purchaser Company and its counsel any comments Parent, Sub or their counsel may be asserted by receive from the Parent SEC or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser staff with respect to any of the foregoing conditions (including, without limitation, Offer Documents promptly after the satisfaction receipt of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offercomments.
Appears in 3 contracts
Samples: Confidentiality Agreement (Johnson & Johnson), Agreement and Plan of Merger (Femrx Inc), Agreement and Plan of Merger (Johnson & Johnson)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of As promptly as practicable following the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after --------- execution of this Agreementhereof, the Parent Purchaser shall issue make a public announcement pursuant to Rule 14d-2(e) under the Securities Exchange Act of 1934, as amended (the execution of this Agreement"Exchange Act"), and not later than the fifth business day after the date of the public announcement of the execution of this Agreementand, promptly thereafter, the Purchaser shall, subject shall commence or shall cause a wholly-owned subsidiary to commence (within the provisions meaning of this Agreement, commence a tender Rule 14d-2 under the Exchange Act) an offer (the "Offer") for to purchase all of the issued and outstanding shares of Common Stockcommon stock, together with the associated rights issued pursuant to the Rights Agreement dated as par value 0.01 Netherlands Guilders per share, of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, (referred to herein as Rights Agent (collectively, either the "Shares" or "Company Common Stock") at a price of for (i) $10.50 30.00 per Share, net of fees and commissions, to the seller in cashcash (the "Offer Price"), subject to there being, at the expiration of the Offer, validly tendered and not withdrawn that number of Shares which represent at least ninety percent (90%) of the capital stock entitled to vote and then outstanding (the "Minimum Condition") and to the other conditions set forth in Section 6.1 hereof. The Purchaser shall shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for all Shares which have been tendered as soon as practicable after it is permitted to do so under the Exchange Act (the "Closing Date"). The obligations of the Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Section 6.1 hereof. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the Minimum Condition and the other conditions set forth in Section 6.1 hereof. Without the written consent of the Company (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof), the Purchaser shall not (i) decrease the Offer Price or change the form of consideration payable pursuant to the Offer at (other than as set forth below), (ii) decrease the earliest time following expiration number of Shares sought or extend the Offer (other than as set forth below), or (iii) impose any additional conditions or amend any condition of the Offer that all conditions in any manner adverse to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation holders of the Purchaser to accept for paymentShares; provided, purchase and pay for Shares tendered pursuant to however, that if on the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the scheduled expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change as it may be made which decreases the price per Share payable in the Offerextended), 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 imposes all conditions to the Offer in addition shall not have been satisfied or waived, the Offer may be extended by the Purchaser from time to those set forth in Annex A heretotime to permit the satisfaction of such conditions until termination of this Agreement, which broadens without the scope consent of the Company, to permit satisfaction of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingIn addition, the Purchaser may, without the consent of the Company, (i) increase the Offer Price and extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted extent required by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerlaw.
Appears in 3 contracts
Samples: Acquisition Agreement (Marriott International Inc), Acquisition Agreement (Marriott International Inc), Acquisition Agreement (Renaissance Hotel Group N V)
The Offer. (a) Provided that this Agreement shall not have --------- been terminated in accordance with Article IX Section 8.01 hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, Parent shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than September 12, 1995. The obligation of Parent to accept for payment and to pay for Shares tendered pursuant to the Offer shall be subject to the condition that at least 2,986,004 Shares (or such greater number of Shares as equals 75% of the Shares then outstanding) shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Tender Condition") and shall also be subject to the satisfaction of the other conditions set forth in Annex A shall have occurred hereto. Subject to the terms and be existingconditions of the Offer (including the Minimum Tender Condition), then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following as promptly as reasonably practicable after expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Parent expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by the Company Board in writing, no change may will be made which that decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the Offer, which reduces adds additional conditions to the maximum Offer, decreases the number of Shares to be purchased being tendered for in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares or makes any change in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period terms and conditions of the Offer beyond 45 days after which is inconsistent with the date third sentence of commencement of the Offer, this Section 1.01(a) or which is otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A hereto are for the sole benefit of the Parent and the Purchaser and may be asserted by Parent or, subject to the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaserpreceding sentence, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the PurchaserParent, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the Purchaser at any time Per Share Amount, subject to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right applicable withholding taxes, shall be deemed an ongoing right which may be asserted at any time paid net to the seller in cash, upon the terms and from time subject to time. Any determination by the Parent or the Purchaser with respect to any conditions of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Pritzker Family Philanthropic Fund), Agreement and Plan of Merger (Tie Acquisition Co), Agreement and Plan of Merger (Marmon Holdings Inc)
The Offer. (a) Provided that Subject to the conditions of this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions including those set forth in Annex A shall have occurred and be existinghereto, thenas promptly as practicable, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not but in no event later than the fifth business day after following the date of the initial public announcement of the execution terms of this AgreementAgreement (which shall occur as promptly as practicable but in no event later than 24 hours after the execution hereof), Acquisition Sub shall commence (within the Purchaser shall, subject meaning of Rule 14d-2(a) of the Exchange Act) the Offer to the provisions of this Agreement, commence a tender offer (the "Offer") for purchase all of the outstanding shares of Common Stock, together with Shares at the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, Per Share Amount net to the seller in cash. The Purchaser shall obligation of Acquisition Sub to accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Company's outstanding Shares (on a fully diluted basis excluding any Employee Options (as defined in Section 2.8) which are not exercisable as of the date of such calculation) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"), and the obligation of Acquisition Sub to ----------------- commence the Offer and accept for payment and pay for Shares tendered pursuant to the Offer shall be subject to the other conditions set forth in Annex A hereto. Solely The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (determined using Rule 14-1(c)(6) under the Exchange Act). If, on any scheduled expiration date of the Offer, the conditions set forth in clauses (ii), (iii) or (iv) of Annex A have not been satisfied or waived, at the written request of the Company, Acquisition Sub shall, from time to time, extend the expiration date of the Offer for purposes of determining whether the period set forth in such written requests. It is agreed that the Minimum Condition has been satisfied, and the other conditions set forth in Annex A hereto are for the sole benefit of Acquisition Sub and may be asserted by Acquisition Sub regardless of the circumstances giving rise to any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offersuch condition. The Purchaser Acquisition Sub expressly reserves the right in its sole discretion to waive, in whole or in part at any time or from time to time, any such condition, to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by the Company in writing, no -------- change may be made which that decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens changes the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period expiration date of the Offer beyond 45 days after the date of commencement of the Offeror otherwise amends, adds or which otherwise amends the terms waives any term or condition of the Offer (including in any of the conditions set forth in Annex A) in a manner that is materially adverse to the holders of Shares, and provided, further, that Acquisition Sub shall not waive the Minimum -------- ------- Condition without the prior written consent of the Company. Notwithstanding the foregoing, the Purchaser Acquisition Sub may, without the consent of the Company, (i) extend the Offer ifOffer, if at the scheduled expiration date of the Offer, Offer any of the conditions to the PurchaserAcquisition Sub's obligation to purchase Shares shall are not be satisfied satisfied, until such time as such conditions are satisfiedsatisfied or waived, or (ii) extend the Offer for a period of not more than 15 5 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence ifsentence, if on the date of such extension, more than two-thirds but extension (x) less than 90 percent 90% of the Shares on a fully diluted basis have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that Offer and (y) Acquisition Sub has permanently waived all of the conditions to the Offer set forth in Annex A (other than the conditions set forth in clause (v)(b) of Annex A are A) and (iii) extend the Offer for the sole benefit any period required by any regulation, rule, interpretation or position of the Securities and Exchange Commission ("SEC") or the staff thereof applicable to the Offer. On the terms and --- subject to the conditions of the Offer and this Agreement, Acquisition Sub shall, and Parent shall cause Acquisition Sub to, pay for all Shares validly tendered and not withdrawn pursuant to the Offer that Acquisition Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer and in any event no later than the close of business on the business day following the expiration of the Offer. Notwithstanding anything to the contrary contained in this Agreement, Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the Purchaser at any time to exercise any of the foregoing rights Acquisition Sub shall not be deemed a waiver required to commence the Offer in any jurisdiction other than the United States of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferAmerica.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Gec Acquisition Corp), Agreement and Plan of Merger (Reltec Corp), Agreement and Plan of Merger (Gec Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VIII and none of the events or conditions set forth in Annex A shall have occurred or be existing (unless such event shall have been waived by Merger Sub), Parent shall cause Merger Sub to commence, and be existing, then, not later than the first business day after execution of this AgreementMerger Sub shall commence, the Parent shall issue a public announcement of Offer at the execution of this Agreement, and not later than the fifth business day Per Share Amount as promptly as reasonably practicable after the date of hereof, but in no event later than five business days after the public announcement of Merger Sub's intention to commence the execution Offer. The Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement, . The initial expiration date of the Purchaser shall, subject to Offer shall be the provisions of this Agreement, commence a tender offer twentieth business day from and after the date the Offer is commenced (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights AgreementInitial Expiration Date"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser Merger Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including (i) the condition (the "Minimum Condition") that a at least the number of Shares representing not less than that, when combined with the Shares already owned by Parent and its direct or indirect Subsidiaries, constitute a majority of the then outstanding Shares on a fully diluted basis basis, including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights (other than the Rights (as defined in the Rights Agreement)) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and (ii) the "Minimum Condition")satisfaction or waiver of the other conditions set forth in Annex A hereto. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Merger Sub expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that (notwithstanding Section 9.5) no change may be made which (A) decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which (B) reduces the maximum number of Shares to be purchased in the Offer, which (C) imposes conditions to the Offer in addition to those set forth in Annex A heretoA, which broadens (D) amends or changes the scope terms and conditions of such conditions, which increases the minimum number Offer in any manner adverse to the holders of Shares which must be tendered as a condition to the acceptance for payment (other than Parent and payment for shares in the Offerits Subsidiaries), which (E) changes or waives the Minimum Condition if such waiver would result Condition, (F) changes the form of consideration payable in less than a majority the Offer or (G) except as provided below or required by any rule, regulation, interpretation or position of Shares being accepted for payment or paid for pursuant the Commission applicable to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends changes the period of the Offer beyond 45 days after the expiration date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser Merger Sub may, without the consent of the Company, (iA) extend the Offer ifOffer, if at the scheduled expiration date of the Offer, Offer any of the conditions to set forth in Annex A (the Purchaser's obligation to purchase Shares "Offer Conditions") shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Commission applicable to the Offer and (C) extend the Offer to provide for a subsequent offering period pursuant to Rule 14d-11 under the Exchange Act for an aggregate period of not more than 15 20 business days (for all such extensions) beyond the latest expiration date that would otherwise be permitted under clause (iA) or (B) of this sentence ifsentence. In addition, on Parent and Merger Sub agree that Merger Sub shall from time to time extend the Offer, if requested by the Company, (i) if at the Initial Expiration Date (or any extended expiration date of such extensionthe Offer, more if applicable), any of the conditions to the Offer other than two-thirds but less than 90 percent of Shares the Minimum Condition shall not have been waived or satisfied, and the Minimum Condition shall have been satisfied, until (taking into account all such extensions) the earlier of August 31, 2000 or such earlier date upon which any such condition shall not be reasonably capable of being satisfied prior to August 31, 2000; or (ii) if at the Initial Expiration Date (or any extended expiration date of the Offer, if applicable), all of the conditions to the Offer other than the Minimum Condition shall have been waived or satisfied and the Minimum Condition shall not have been satisfied, until the earlier of ten (10) business days after such expiration date or August 31, 2000. Upon the prior satisfaction or waiver of all the conditions to the Offer, and subject to the terms and conditions of this Agreement, Merger Sub will, and Parent will cause Merger Sub to, accept for payment, purchase and pay for, in accordance with the terms of the Offer, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer. It is agreed that 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 subject to the conditions set forth in Annex A are for the sole benefit of the Parent Offer. Subject to the terms and the Purchaser and may be asserted by the Parent or the Purchaser regardless conditions of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions Offer (including, without limitation, the satisfaction Minimum Condition), Merger Sub shall accept for payment and pay, as promptly as practicable after expiration of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer, for all Shares validly tendered and not withdrawn.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Ascent Entertainment Group Inc), Agreement and Plan of Merger (On Command Corp), Agreement and Plan of Merger (Liberty Media Corp /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and So long as none of the events or conditions set forth in clauses (a) through (h) of Annex A I hereto shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreementor exist, the Purchaser shall, subject to and Parent shall cause the provisions of this AgreementPurchaser to, commence a tender offer (within the "Offer"meaning of Rule 14d-2(a) for all of the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act")) as promptly as practicable after the date hereof, between the Company and First Interstate Bank of Californiabut in any event not later than May 4, as Rights Agent (collectively1998, the "Offer for any and all outstanding Shares not owned by the Purchaser at the Offer Price applicable to such Shares") at a price of $10.50 per Share, net to the seller in cash. The initial expiration date for the Offer shall be the twentieth business day from and after the date the Offer is commenced, including the date of commencement as the first business day in accordance with Rule 14d-2 under the Exchange Act (the "Expiration Date"). As promptly as practicable, the Purchaser shall accept for payment file with the Securities and pay for all Shares which have been validly tendered Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1" and not withdrawn together with the documents therein pursuant to which the Offer at will be made, and with any supplements or amendments thereto, the earliest time following expiration of "Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer that all conditions to Purchase (the "Offer to Purchase") which shall be mailed to the Offer set forth in Annex A hereto shall have been satisfied or waived by holders of Shares with respect to the PurchaserOffer. The obligation of Parent and the Purchaser to accept for payment, purchase and payment or pay for any Shares tendered pursuant to the Offer shall will be subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there being validly tendered and not withdrawn prior to the expiration date of the Offer Offer, that number of Shares which represents at least 66-2/3% of the Shares outstanding on a fully diluted basis (without giving pro forma effect to the potential issuance of any Shares issuable under the Stock Option Agreement) (the "Minimum Condition") and to the satisfaction or waiver of the other conditions set forth in Annex I hereto ("fully diluted basis" means issued and outstanding Shares and Shares subject to issuance under outstanding employee stock options). Solely for purposes Without the prior written consent of determining whether the Minimum Condition has been satisfiedCompany, any Shares owned by Parent or the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in (i) decrease the Offer Price or to make any other changes in change the terms and conditions form of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share consideration payable in the Offer, which changes (ii) decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares sought to be purchased in the Offer, which imposes conditions to or (iii) amend any other term of the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition any manner adverse to the acceptance for payment and payment for shares in holders of any Shares; provided, however, that if on the Offerinitial scheduled Expiration Date, which waives the Minimum Condition if such waiver would result in less than a majority sole condition remaining unsatisfied is the failure of Shares being accepted for payment or paid for pursuant to the Offer, which, except waiting period under the HSR Act (as hereinafter set forth in this Subsection 1.01(a)defined) to have expired or been terminated, extends the period of Purchaser shall, and Parent shall cause the Offer beyond 45 Purchaser to, extend the expiration date from time to time until two business days after the date of commencement expiration of the Offer, or which otherwise amends waiting period under the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferHSR Act.
Appears in 3 contracts
Samples: 1 Agreement and Plan of Merger (Hein Werner Corp), Agreement and Plan of Merger (Snap on Pace Co), Agreement and Plan of Merger (Snap on Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1, Parent shall cause Sub to, and none Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer as promptly as practicable and in any event no later than the tenth (10th) business day following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the events or Offer (as it may be extended in accordance with this Section 1.1(a) ) shall be subject only to the conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent I (collectively, the "Shares") at a price of $10.50 per Share, net “Offer Conditions” and each an “Offer Condition”). Subject to the seller prior satisfaction or, to the extent permitted, waiver by Parent and Sub of the Offer Conditions, Parent shall cause Sub to, and Sub shall, consummate the Offer in cashaccordance with its terms and accept for payment and pay the Offer Price for all Shares tendered and not withdrawn promptly following the acceptance in compliance with Rule 14e-1(c) under the Exchange Act of Shares for payment pursuant to the Offer. The Purchaser Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the Offer Conditions. Parent and Sub expressly reserve the right to waive any Offer Conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Closing Amount or CPR Payment Amount, change the form of payment of the Closing Amount or CPR Payment Amount, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition, impose additional conditions to the Offer, amend any of the Offer Conditions so as to broaden the scope of any such condition, extend the offer beyond a date that is twenty-one (21) business days after commencement of the Offer or the last extension in accordance with this Section 1.1, if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below, or otherwise amend any other term or condition of the Offer in a manner materially adverse to the holders of Shares, in each case without the prior written consent of the Company. Notwithstanding the foregoing and subject to the parties respective termination rights set forth in Section 8.1, Sub may, without the consent of the Company (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions to Sub’s obligation to accept Shares for payment, shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”) or its staff applicable to the Offer. In addition to the foregoing, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act if, as of the Expiration Date, all of the conditions to Sub’s obligations to accept for payment and pay for all Shares which are satisfied or waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of necessary to permit the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration Merger to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as effected without a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent meeting of the Company, (i) extend ’s stockholders in accordance with the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferDGCL.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cubist Pharmaceuticals Inc), Agreement and Plan of Merger (Adolor Corp), Agreement and Plan of Merger (Cubist Pharmaceuticals Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Section (a) through (i) of Annex A attached hereto and made a part hereof ("Annex A") shall have occurred and be existingcontinuing (and shall not have been waived by Merger Sub), thenMerger Sub shall, not later than the first business day after execution of this Agreement, the and Parent shall issue a public announcement cause Merger Sub to, commence (within the meaning of Rule 14d-2 of the execution of this Agreement, and not later than Exchange Act (as defined in Section 2.8(a)) the fifth business day Offer as promptly as reasonably practicable after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashhereof. The Purchaser shall obligation of Merger Sub to accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including satisfaction of the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there be validly tendered and not withdrawn prior to the expiration date of the Offer that number of Shares which represents at least a majority of the then outstanding Shares on a fully-diluted basis (the "Minimum Condition"). Solely for purposes ) and to the satisfaction or waiver by Merger Sub of determining whether the other conditions set forth in Annex A (the Minimum Condition has been satisfiedand the conditions set forth in Annex A collectively, the "Offer Conditions"). The Company agrees that no Shares held by the Company or any Shares owned by Parent or Purchaser shall of its Subsidiaries (as defined in Section 3.1) will be deemed tendered to have been validly tendered and not withdrawn Merger Sub pursuant to the Offer. The Purchaser Merger Sub expressly reserves the right to waive any of the Offer Conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer or and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made without the prior written 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 changes the form of consideration to be paid in the Offer, imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) , waives or changes the Minimum Condition or makes other changes in a the terms and conditions of the Offer that are in any manner that is materially adverse to the holders of SharesShares or, except as provided below, extends the Offer. Subject to the terms of the Offer and this Agreement and the satisfaction of the Minimum Condition and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A as of any expiration date of the Offer, Merger Sub will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable Legal Requirements. Notwithstanding the foregoing, the Purchaser Merger Sub may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which initially shall be twenty (20) Business Days following the date of commencement of the Offer (counting for such purposes the day the Offer is commenced as the first day of such period), if, at the scheduled expiration of the Offer, any of the Offer Conditions shall not be satisfied or, to the extent permitted by this Agreement, waived, (ii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (the "SEC"), the staff thereof or the Nasdaq National Market ("NASDAQ") applicable to the Offer, (iii) if on the then scheduled expiration date of the Offer, any there shall not have been validly tendered and not withdrawn at least 80% of the conditions to the Purchaser's obligation to purchase outstanding Shares shall not be satisfied until such time as such conditions are satisfiedon a fully-diluted basis, or (ii) extend the Offer for a period of not more than 15 business days beyond to exceed ten (10) Business Days or (iv) provide a "subsequent offering period" in accordance with Rule 14d-11 under the latest expiration date Exchange Act. On or prior to the dates that would otherwise Merger Sub becomes obligated to accept for payment and pay for Shares pursuant to the Offer, Parent shall provide or cause to be permitted under clause (i) of this sentence if, on provided to Merger Sub the date of such extension, more than two-thirds but less than 90 percent of funds necessary to pay for all Shares have been validly tendered that Merger Sub becomes so obligated to accept for payment and not properly withdrawn pay for pursuant to the Offer. It is agreed that The Offer Price shall, subject to any required withholding of Taxes (as defined in Section 3.6), be net to the seller in cash, upon the terms and subject to the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (DRS Technologies Inc), Agreement and Plan of Merger (Paravant Inc), Agreement and Plan of Merger (Paravant Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none no event shall have occurred and no circumstance shall exist which would result in a failure to satisfy any of the conditions or events or conditions set forth in Annex A shall have occurred hereto (the "Offer Conditions"), Purchaser shall, as soon as reasonably practicable after the date hereof (and be existing, then, not later than in any event within five business days from the first business day after execution date of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementhereof), commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") Offer at a price of $10.50 5.50 per ShareShare (and associated Right), net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date satisfaction of the Offer (the "Minimum Condition")Conditions. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right right, in its sole discretion, to increase waive any such condition (other than the price per Share payable Minimum Condition as defined in the Offer or to Conditions) and make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the OfferOffer (other than by adding consideration), which reduces the maximum number of Shares to be purchased in the Offer, which or imposes conditions to the Offer in addition to those set forth in Annex A hereto, herein which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially are adverse to holders of the Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled The initial expiration date of the OfferOffer shall be 20 business days following (and inclusive of) the date of commencement. Purchaser covenants and agrees that, any of the conditions subject to the Purchaser's obligation terms and conditions of this Agreement, including but not limited to purchase the Offer Conditions, it will accept for payment and pay for Shares as soon as it is permitted to do so under applicable law, provided that Purchaser shall not be satisfied until such time as such conditions are satisfiedhave the right, or (ii) in its sole discretion, to extend the Offer from time to time for a period up to an aggregate of not more than 15 20 business days beyond days, notwithstanding the latest expiration date that would otherwise be permitted under clause (i) prior satisfaction of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the OfferOffer Conditions. It is agreed that the conditions set forth in Annex A Offer Conditions are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by Purchaser) or, except with respect to the PurchaserMinimum Condition, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cyrus Acquisition Corp), Agreement and Plan of Merger (General Host Corp), Agreement and Plan of Merger (Franks Nursery & Crafts Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1 and none of the events set forth in Annex A hereto shall have occurred and be continuing (and shall not have been waived by Purchaser or Merger Sub), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five (5) business days from the date of this Agreement, and the Offer shall remain open at least twenty (20) business days (as defined in Rule 14d-1(g)(3) of the Exchange Act) from commencement of the Offer (the “Initial Expiration Date”). The obligation of Merger Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) shall be subject only to the satisfaction or waiver by Purchaser or Merger Sub of the following conditions: (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of Common Stock that represents a majority of all outstanding shares of Common Stock that are not Beneficially Owned by Purchaser, Merger Sub or any Purchaser Affiliate (the “Minimum Condition”); and (ii) the other conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution hereto. For purposes of this Agreement, the Parent term “Purchaser Affiliate” shall issue mean any person or entity that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with Purchaser or its officers or directors and the term “Beneficially Owned or “Beneficially Own” shall include but is not limited to shares of Common Stock that any person or entity, directly or indirectly, through any written or oral agreement, arrangement, relationship, understanding or otherwise with Purchaser or a public announcement of Purchaser Affiliate, has or shares the execution of this Agreementpower to vote, direct the power to vote, or direct the voting of, or has or shares the power to dispose of, or direct the disposition of, and includes, but is not later than the fifth business day after the date of the public announcement of the execution of this Agreementlimited to, the Purchaser shallcurrently exercisable right to acquire Common Stock through the exercise of options, subject to warrants, or rights on the provisions conversion of this Agreement, commence a tender offer (the "Offer") for all of the outstanding convertible securities into shares of Common Stock, together with ; provided that the associated term Beneficially Owned for purposes of this Section 1.01(a) shall not include shares of Common Stock that are subject to the rights issued of the Purchaser and Merger Sub pursuant to the Rights Shareholders Agreement dated as of December 5, 1992, as amended (or the "Company Rights Stock Option Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net . Subject to the seller prior satisfaction or waiver by Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in cash. The Purchaser Annex A hereto, Merger Sub shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares which tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Merger Sub shall not, and Purchaser shall cause Merger Sub not to, decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of Shares sought in the offer, impose additional conditions to the Offer, extend the Offer beyond the Initial Expiration Date except as set forth below, purchase any Shares pursuant to the Offer or otherwise unless the shares purchased equal or exceed that number of shares of Common Stock that satisfy the Minimum Condition or amend any other condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, prior to the termination of this Agreement (i) if, at any scheduled expiration of the Offer any of the conditions to Merger Sub’s obligation to accept Shares for payment shall not be satisfied or waived (including without limitation the Minimum Condition), extend the Offer beyond the then applicable expiration date thereof for a time period reasonably necessary to permit such condition to be satisfied, or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer or (iii) if, at any scheduled expiration of the Offer, the number of shares of Common Stock that shall have been validly tendered and not withdrawn pursuant to the Offer at satisfies the earliest time following expiration Minimum Condition but represents less than 90% of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation shares of the Purchaser to accept for paymentCommon Stock outstanding, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of extend the Offer (one or more times) for an aggregate additional period of not more than 20 business days. Merger Sub may also, without the "Minimum Condition"). Solely for purposes consent of determining whether the Company but only after the Minimum Condition has been is satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to extend the Offer in addition to those set forth in Annex A heretoaccordance with Rule 14d-11 under the Exchange Act. In addition, which broadens the scope of such conditions, which increases Offer Price may be increased and the minimum number of Shares which must Offer may be tendered as a condition extended to the acceptance for payment and payment for shares extent required by law in the Offer, which waives the Minimum Condition if connection with such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser mayincrease, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Ault Inc), Agreement and Plan of Merger (Sl Industries Inc), Agreement and Plan of Merger (Sl Industries Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existingSection 8.01, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementand Parent shall cause Purchaser to, commence a tender offer (within the "Offer"meaning of Rule 14d-2(a) for all of the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights Agreement"“Exchange Act”), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at promptly after the earliest time following expiration date of the Offer that all conditions to the Offer set forth this Agreement, but in Annex A hereto shall have been satisfied or waived by the Purchaserany event not later than June 1, 2006. The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including (i) the condition (the “Minimum Condition”) that a at least the number of Shares representing not less than a majority that, when added to Shares then owned by Parent and its direct and indirect wholly owned subsidiaries and affiliates, shall constitute at least ninety percent (90%) of the then outstanding Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and (ii) the "Minimum Condition")satisfaction or waiver of each of the other conditions set forth in attached Annex I hereto. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such conditions, to increase the price per Share payable in the Offer or Price, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided that without the prior written consent of the Company, HOWEVERthe Purchaser shall not, thatand Parent shall cause Purchaser not to, unless previously approved by waive the Company in writingMinimum Condition, no change may be made which decreases extend the Offer except as expressly provided below, decrease the price per Share or change the form of consideration payable in the Offer, which changes decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares sought to be purchased in the Offer, which imposes impose conditions to the Offer in addition to those set forth in Annex A heretoI, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period amend any other term of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including in any of the conditions set forth in Annex A) in a manner that is materially adverse to the holders of any Shares. Notwithstanding the foregoing, the Purchaser may, without the prior consent of the Company, prior to the termination of this Agreement, (ix) extend the Offer for an aggregate period of not more than 10 business days beyond the scheduled expiration date, which initially shall be 20 business days following the commencement of the Offer (the “Initial Expiration Date”), if, at the any scheduled expiration date of the Offer, any of the conditions to Purchaser’s obligations to accept the Purchaser's obligation to purchase Shares for payment shall not be satisfied until such time as such conditions are satisfiedor waived, or (iiy) extend the Offer for a any period required by any rule, regulation, or interpretation of the Securities and Exchange Commission (the “SEC”), or the staff thereof, applicable to the Offer, or (z) extend the Offer (one or more times) for an aggregate period of not more than 15 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (ix) or (y) of this sentence sentence, if, as of such date, all of the conditions to Purchaser’s obligations to accept the Shares for payment are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer totals less than ninety percent (90%) of the outstanding Shares (including Shares already owned by Parent and its direct and indirect wholly owned subsidiaries and affiliates). In addition, (1) if, on the date Initial Expiration Date, the sole condition remaining unsatisfied is the failure of such extensionthe waiting period under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, more than two-thirds but less than 90 percent as amended (the “HSR Act”), to have expired or been terminated, then Purchaser shall, without the prior written consent of Shares have been validly tendered and not properly withdrawn pursuant the Company, extend the Offer from time to time until the Offer. It fifth business day after expiration or termination of the applicable waiting period under the HSR Act or (2) if, on the Initial Expiration Date, the sole condition remaining unsatisfied is agreed that the conditions condition set forth in paragraph (g) of Annex A are for the sole benefit of the Parent and I, the Purchaser and may be asserted by may, for so long as the Parent or Company is using its commercially reasonable efforts to cure such breach, extend the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and Offer from time to timetime until five business days after such breach is cured, in its sole discretion. The failure by the Parent or the provided that 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 deemed an ongoing right which may be asserted at any time and from time required pursuant to time. Any determination by this clause (2) to extend the Parent or Offer beyond 30 calendar days after the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the partiesInitial Expiration Date. The Company agrees that no Shares held by the Company or any subsidiary of the Company will be tendered in pursuant to the Offer. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver (to the extent permitted by this Agreement) of all the conditions to the Offer, Purchaser shall, and Parent shall cause Purchaser to, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer. Each of the Parent and the Purchaser shall use its commercially reasonable efforts to avoid the occurrence of any Event specified in Annex I or to cure any such Event that shall have occurred.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Main Street Restaurant Group, Inc.), Agreement and Plan of Merger (Main Street Acquisition CORP), Agreement and Plan of Merger (Main Street Restaurant Group, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Subject to the terms and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not as promptly as practicable (but in no event later than the fifth five business day days after the date of the public announcement of the execution of this Agreementhereof), the Purchaser shall, subject to shall commence (within the provisions meaning of this Agreement, commence a tender offer (Rule 14d-2 under the "Offer") for all Securities Exchange Act of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act")) the Offer to purchase for cash all of the issued and outstanding Shares, between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 13.50 per Share, net to the seller in cashcash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"). The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there being validly tendered and not withdrawn prior to the expiration date of the Offer, at least a majority of the Shares outstanding on a fully diluted basis as of the expiration of the Offer (the "Minimum Condition") and to the other conditions set forth in Annex A hereto (including the Minimum Condition, herein referred to as the "Offer Conditions"). Solely for purposes The Purchaser shall, subject to the terms of determining whether this Agreement, including the prior satisfaction or waiver (except that the Minimum Condition has been satisfiedmay not be waived without the consent of the Company) of the Offer Conditions, accept for payment and pay for any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the OfferOffer as soon as possible after the expiration thereof. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the Offer terms set forth in this Agreement. The Purchaser expressly reserves the right right, in its sole discretion, to increase the price per Share payable in the Offer or to waive any such condition and make any other changes in the terms and conditions of the Offer; PROVIDEDOffer not inconsistent with the provisions of this Agreement, HOWEVER, provided that, unless previously approved the Purchaser shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of Shares sought, or amend any other condition of the Offer in any manner adverse to the holders of the Shares without the prior written consent of the Company (such consent to be authorized by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as Board or a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(aduly authorized committee thereof), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser mayshall, and Parent agrees to cause the Purchaser to, extend the Offer at any time up to May 10, 1999 for one or more periods of not more than 10 business days, or, if longer, for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, if at the initial expiration date of the Offer, or any extension thereof, any condition to the Offer (other than the Minimum Condition) is not satisfied or waived. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase in each case without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions . Subject to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfiedforegoing, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It it is agreed that the conditions set forth in Annex A Offer Conditions are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the PurchaserPurchaser or Parent not inconsistent with the terms hereof) or, unless any such action or inaction by except with respect to the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or Minimum Condition, may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (L 3 Communications Corp), Agreement and Plan of Merger (Aydin Corp), Agreement and Plan of Merger (Aydin Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none of the events described in any of paragraphs (a) or conditions set forth in (b) of Annex A shall III hereto have occurred and be existingcontinuing (unless waived by Parent or Sub), thenSub shall, not later than the first business day after execution of this Agreement, the and Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementcause Sub to, commence a tender offer (within the "Offer") for all meaning of Rule 14d-2 under the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (together with the "Company Rights Agreement"), between the Company rules and First Interstate Bank of California, as Rights Agent (collectivelyregulations promulgated thereunder, the "Shares"“Exchange Act”)) at a price of $10.50 per Share, net to the seller in cashOffer within ten (10) business days following the date hereof. The Purchaser shall obligations of Sub to accept for payment and to pay for all any Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the "Minimum Condition")conditions set forth in Annex III hereto. Solely for purposes of determining whether Subject to the Minimum Condition has been satisfied, any Shares owned prior satisfaction or waiver by Parent or Purchaser Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall be deemed to have been validly cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Purchaser Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the price per Share payable in the Offer or Price and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, thatthat Sub shall not, unless previously approved by and Parent shall cause Sub not to, decrease the Company Offer Price or change the form of consideration in writingwhich any component of the Offer Price is payable, no change may be made which decreases decrease the price per Share payable number of Shares sought 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives waive or change the Minimum Condition if such waiver would result (as defined in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(aAnnex III hereto), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, modify or which otherwise amends the terms of the Offer (including amend any of the conditions set forth in Annex A) III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a manner date that is materially adverse twenty-one (21) business days after commencement of the Offer or the last extension (as permitted in accordance with this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to holders be authorized by the Company Board of SharesDirectors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the Purchaser parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at the any scheduled (or extended) expiration date of the Offer, any of the conditions to set forth in Annex III hereto (other than the Purchaser's obligation to purchase Shares Minimum Condition) shall not be satisfied until such or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time as such conditions are to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iiiii) extend the Offer for a any period required by any rule, regulation or interpretation of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause United States Securities and Exchange Commission (i) of this sentence if“SEC”), on or the date of such extensionstaff thereof, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant applicable to the Offer. It is agreed that In addition to the conditions set forth in Annex A are for the sole benefit of the Parent foregoing and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to excluded from any such condition (including any action or inaction by limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferExchange Act.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Covidien PLC), Agreement and Plan of Merger (Covidien Delaware Corp.), Agreement and Plan of Merger (Power Medical Interventions, Inc.)
The Offer. (a) Provided that Subject to the provisions of this Agreement shall not have been terminated ---------- Agreement, as promptly as practicable but in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not no event later than the first five business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day days after the date of the public announcement of by Parent and the execution Company of this Agreement, the Purchaser Sub shall, subject to the provisions of this Agreementand Parent shall cause Sub to, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of Sub to, and of Parent to cause Sub to, commence the Purchaser to Offer and accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex Exhibit A hereto(the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, including the condition that except that, unless a number of Shares representing not less than a majority of the Shares on a fully diluted basis Takeover Proposal (as defined in Section 6.02(a)) shall have been validly tendered and made after the date hereof, Sub shall not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether waive the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to (as defined in Exhibit A) without the Offerconsent of the Company). The Purchaser Sub expressly reserves the right to increase modify the price per Share terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or to make (vi) amend the Offer Conditions or any other changes in the terms and conditions term of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition any manner adverse to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser Sub may, without the consent of the Company, (i) extend the Offer ifOffer, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (ii) extend the Offer for a any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence ifsentence, on in each case subject to the date right of such extensionParent, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn Sub or the Company to terminate this Agreement pursuant to the terms hereof. Parent and Sub agree that if at any scheduled expiration date of the Offer. It is agreed that , the Minimum Condition, the HSR Condition (as defined in Exhibit A) or either of the conditions set forth in Annex paragraphs (e) or (f) of Exhibit A are for shall not have been satisfied, but at such scheduled expiration date all the sole benefit conditions set forth in paragraphs (a), (b), (c), (d) and (g) shall then be satisfied, at the request of the Parent and Company (confirmed in writing), Sub shall extend the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and Offer from time to time, in its sole discretion. The failure by subject to the Parent right of Parent, Sub or the Purchaser at any time Company to exercise any terminate this Agreement pursuant to the terms hereof. Subject to the terms and conditions of the foregoing rights Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not be deemed a waiver withdrawn pursuant to the Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the expiration of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Conopco Acquisition Co Inc), Agreement and Plan of Merger (Curtis Helene Industries Inc /De/), Agreement and Plan of Merger (Curtis Helene Industries Inc /De/)
The Offer. (a) Provided that this Agreement shall --------- not have been terminated in accordance with Article IX Section 9.1 and none of the events or conditions set forth in Annex A Article 7 shall have occurred and be existing, thenas promptly as practicable, not but in no event later than the first five (5) business day days after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution hereof by the parties, Acquisition shall commence (within the meaning of this Agreement, Rule 14d-2 under the Purchaser shall, subject to the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between the Company Offer; and First Interstate Bank of CaliforniaAcquisition shall use reasonable efforts to consummate the Offer, as Rights Agent (collectivelyincluding, the "Shares") at a price of $10.50 per Sharewithout limitation, net to the seller engaging an information agent in cashconnection therewith. The Purchaser Acquisition shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserAcquisition. The obligation of the Purchaser Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including the condition that a number of at least 2,000,000 Shares representing not less than a majority of the Shares on a fully diluted basis shall have been be validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")) and the other conditions set forth in Article 7. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Acquisition expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, Offer (provided that, unless previously approved by the Company in writing, no change may be made which decreases the price per Per Share payable in the OfferAmount, 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, Article 7 or which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A Article 7 are for the sole benefit of the Parent and the Purchaser Acquisition and may be asserted by the Parent or the Purchaser Acquisition regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this AgreementAcquisition) or may be waived by the Parent or the PurchaserAcquisition, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the Purchaser Acquisition at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination (which shall be made in good faith) by the Parent or the Purchaser Acquisition with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Per Share Amount shall be paid net to the seller in cash, less any required withholding of taxes, upon the terms and subject to such conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer. Pursuant to separate agreements, the persons listed in Schedules 2.1(a) and 2.1(b) have agreed not to tender in the Offer the number of Shares listed in such Schedules without Parent's consent.
Appears in 3 contracts
Samples: Merger Agreement (Mi Subsidiary I Inc), Merger Agreement (Marriott International Inc /Md/), Merger Agreement (Execustay Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Subject to the terms and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth within five (5) business day days after the date of the public announcement of announcement, which shall occur on the execution date hereof or the following day, by Parent and the Company of this Agreement, the Purchaser Sub shall, subject to the provisions of this Agreementand Parent shall cause Sub to, commence a tender offer (within the meaning of Rule 14d-2 under the Exchange Act (as hereinafter defined)) the Offer, which shall expire at midnight, New York City time, on the date that is twenty (20) business days after the date the Offer is commenced (the initial "Offer") for all Expiration Date," and any expiration time and date established pursuant to an authorized extension of the outstanding shares of Common StockOffer as so extended, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the also an "Company Rights AgreementExpiration Date"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall obligation of Sub to, and of Parent to cause Sub to, commence the Offer, conduct and consummate the Offer as soon as practicable after the date hereof and accept for payment payment, and pay for all for, any Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex Exhibit A hereto(the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the express written consent of the Company, Sub may not waive the Minimum Condition (as defined in Exhibit A)). Sub expressly reserves the right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) add to or modify the Offer Conditions, including the condition that a number of Shares representing not less than a majority of Minimum Condition, (iv) except as provided in the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to next sentence, extend the expiration date Offer, if all of the Offer Conditions are satisfied or waived, (v) change the "Minimum Condition"). Solely for purposes form of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share consideration payable in the Offer or to make (vi) amend or alter any other changes in the terms and conditions term of the Offer; PROVIDEDOffer in any manner materially adverse to the holders of the Shares, HOWEVERprovided, thathowever, unless previously approved by that nothing contained herein shall prohibit Sub, in its sole discretion without the Company in writingconsent of the Company, no change may be made which decreases the price per Share payable in the Offer, which changes the form from waiving satisfaction of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions any condition to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives other than the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of SharesCondition. Notwithstanding the foregoing, the Purchaser Sub may, without the consent of the Company, (iA) extend the Offer if(each individual extension not to exceed five (5) business days after the previously scheduled Expiration Date), if at the then scheduled expiration date Expiration Date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (iiB) extend the Offer for a any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, and (C) extend the Offer on up to two occasions in each case for period of not more than 15 five (5) business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, Expiration Date if on the date of such extension, Expiration Date there shall have been tendered more than two-thirds the number of Shares sufficient to satisfy the Minimum Condition but less than 90 percent 90% of the Shares; provided, Parent agrees to permanently waive the Offer Conditions. Subject to the terms and conditions of the Offer and this Section 1.1(a), Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the conditions set forth in Annex A are for Offer as soon as practicable after the sole benefit expiration of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Ewok Acquisition Corp), Agreement and Plan of Merger (Endogen Inc), Agreement and Plan of Merger (Endogen Inc)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated in accordance with Article IX and none occurred that would give rise to a right to terminate the Offer pursuant to any of the events or conditions set forth in Annex A shall have occurred and be existingI, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day as promptly as practicable after the date of hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Purchaser shall, subject Offer to (i) increase the provisions of this Agreement, commence a tender offer purchase price to $6.50 per Share (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"“Offer Price”), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to , (ii) provide that the Offer at the earliest time following expiration of the Offer that all conditions to the Offer shall be as set forth in Annex A hereto I and that no other conditions shall have been satisfied apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or waived by appropriate to conform to the Purchaserrequirements of this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority there shall be validly tendered in accordance with the terms of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn Offer prior to the expiration date of the Offer (and not withdrawn, a number of Shares that, together with the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or Purchaser shall be deemed to have been validly tendered exchangeable securities are then vested and not withdrawn pursuant exercisable (the “Minimum Condition”) and to the Offerother conditions set forth in Annex I and to no other conditions. The Purchaser expressly reserves the right Subject to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of this Agreement, including the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such prior satisfaction or waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex AI (the “Offer Conditions”), promptly after the later of (x) in a manner that the earliest date as of which Merger Subsidiary is materially adverse permitted under applicable Law to holders accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent which each of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (iiand Parent shall cause Merger Subsidiary to) extend consummate the Offer in accordance with its terms and accept for a period of payment each Share validly tendered and not more than 15 business days beyond properly withdrawn pursuant to the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on Offer and promptly following the date of such extension, more than two-thirds but less than 90 percent acceptance of Shares have been for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the conditions set forth in Annex A are for Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the sole benefit Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferOffer Conditions.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (RP Management, LLC), Agreement and Plan of Merger (Ramius Value & Opportunity LLC), Agreement and Plan of Merger (Cypress Bioscience Inc)
The Offer. (a) By no later than 9:00 a.m., New York City time, on Friday, June 27, 2008, Parent, on behalf of Purchaser, shall extend the Pending Offer to July 18, 2008. Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none of the events or conditions set forth in Annex A I hereto shall have occurred and be existingcontinuing and not have been waived by Parent or Purchaser, thenas promptly as reasonably practicable and, not later than in any event, within five (5) Business Days of the first business day after execution date of this Agreement, Parent or the Parent Purchaser shall issue a public announcement of amend the Pending Offer to reflect the execution of this Agreement, Agreement and the terms hereof and to purchase for cash all Shares at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not later than properly withdrawn shall be subject to (i) there being validly tendered and not properly withdrawn prior to the fifth business day after the date expiration of the public announcement Offer that number of Shares which represents a majority of the execution Shares outstanding on a fully-diluted basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. Subject to the prior satisfaction or waiver by Parent or the Purchaser of this Agreementthe Minimum Condition and the other conditions of the Offer set forth in Annex I hereto, the Purchaser shallshall (and Parent shall cause Purchaser to), subject to in accordance with the provisions of this Agreement, commence a tender offer (the "Offer") for all terms of the outstanding shares of Common StockOffer, together with consummate the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company Offer and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit Offer promptly after expiration of the Parent and Offer, which shall initially be July 18, 2008, provided, however, that (x) if on the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as extended in accordance with this Agreement), all conditions to the Offer shall not have been satisfied or waived, the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchasermay, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure , extend the Offer for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the Parent SEC or the staff thereof applicable to the Offer, and (z) the Purchaser at may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”), provided that, in no event shall the Offer or any time “subsequent offering period” extend beyond the Outside Date without the mutual written consent of the Company and Parent. In addition, the Purchaser may increase the Offer Price and extend the Offer to exercise the extent required by Law in connection with such increase, in each case in its sole discretion and without the Company’s consent. Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Purchaser shall, without the prior written consent of the Company (i) change or waive the Minimum Condition, (ii) reduce the Offer Price or decrease the number of Shares sought to be purchased in the Offer, (iii) change the expiration date of the Offer (except to the extent required or permitted pursuant to this Section 1.1(a)), impose any condition to the Offer in addition to the conditions set forth or referred to in this Section 1.1(a) or amend, modify or supplement any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any terms of the foregoing conditions (including, without limitation, Offer in any manner adversely affecting the satisfaction holders of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferShares.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (OAO Severstal), Agreement and Plan of Merger (Esmark INC)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1 and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have occurred and be continuing (and shall not have been satisfied or waived by Purchaser or Merger Sub), Merger Sub shall commence (within the Purchasermeaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five (5) business days from the date of this Agreement, and the Offer shall remain open at least twenty (20) business days (as defined in Rule 14d-1(g)(3) of the Exchange Act) from commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser Merger Sub to accept for payment, purchase payment and to pay for any Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"as it may be extended in accordance with requirements of this Section 1.1(a). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser ) shall be deemed subject only to have been the satisfaction or the waiver by Purchaser or Merger Sub of the following conditions: (i) there being validly tendered and not withdrawn prior to the expiration of the Offer (x) that number of shares of Common Stock which, together with any shares of Common Stock then owned by Purchaser or Merger Sub (without giving effect to shares subject to purchase under the Stock Option Agreement or the Stockholders Agreement), represents greater than 90% of the shares of Common Stock outstanding and (y) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of Convertible Preferred Stock which, together with any shares of Convertible Preferred Stock then owned by Purchaser or Merger Sub (without giving effect to shares subject to purchase under the Stock Option Agreement the Stockholders Agreement), represents 100% of the Convertible Preferred Stock outstanding (clauses (x) and (y) together, the “Minimum Condition”); and (ii) the other conditions set forth in Annex A hereto. Subject to the prior satisfaction or waiver by Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, Merger Sub shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions, to increase the price per Share payable in either or both of the Offer or Prices and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, thatthat Merger Sub shall not, unless previously approved by and Purchaser shall cause Merger Sub not to, decrease either of the Company in writingOffer Prices, no change may be made which decreases the price per Share form of consideration payable in the Offer, which changes decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased sought in the Offeroffer, which imposes impose additional conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, extend the Offer beyond the Initial Expiration Date except as hereinafter set forth in this Subsection 1.01(a)below, extends the period or amend any other condition of the Offer beyond 45 days after in any manner adverse to the date of commencement holders of the OfferShares, or which otherwise amends in each case without the terms prior written consent of the Offer Company (including any such consent to be authorized by the Company Board of the conditions set forth in Annex A) in Directors or a manner that is materially adverse to holders of Sharesduly authorized committee thereof). Notwithstanding the foregoing, the Purchaser Merger Sub may, without the consent of the Company, (i) extend the Offer if, at the any scheduled expiration date of the Offer, Offer any of the conditions to the Purchaser's Merger Sub’s obligation to purchase accept Shares for payment shall not be satisfied until or waived, extend the Offer beyond the Initial Expiration Date for a time period reasonably necessary to permit such time as such conditions are condition to be satisfied, or (ii) extend the Offer for a any period required by any rule, regulation or interpretation of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause United States Securities and Exchange Commission (i) of this sentence if“SEC”), on or the date of such extensionstaff thereof, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant applicable to the Offer. It is agreed that Merger Sub may, without the conditions set forth in Annex A are for the sole benefit consent of the Parent Company, extend the Offer in accordance with Rule 14d-11 under the Exchange Act. In addition, either or both of the Offer Prices may be increased and the Purchaser and Offer may be asserted extended to the extent required by law in connection with such increase, in each case without the Parent or the Purchaser regardless consent of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Safenet Inc), Agreement and Plan of Merger (Safenet Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution provisions of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not as promptly as practicable but in no event later than the fifth five business day days after the date of the public announcement of by Parent and the execution Company of this Agreement, the Purchaser Sub shall, subject to the provisions of this Agreementand Parent shall cause Sub to, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of Sub to, and of Parent to cause Sub to, commence the Purchaser to Offer and accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex Exhibit A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum ConditionOffer Conditions"). Solely for purposes ) (any of determining whether which may be waived in whole or in part by Sub in its reasonable discretion, except that Sub shall not waive the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered (as defined in Exhibit A) without the consent of the Company) and not withdrawn pursuant to the Offerterms and conditions of this Agreement. The Purchaser Sub expressly reserves the right to increase modify the price per Share terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or to make (vi) amend any other changes in the terms and conditions term of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition any manner adverse to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period holders of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser Sub may, without the consent of the Company, (i) extend the Offer ifOffer, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (ii) extend the Offer for a any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence ifsentence. Subject to the terms and conditions of the Offer and this Agreement, on the date of such extensionSub shall, more than two-thirds but less than 90 percent of and Parent shall cause Sub to, accept for payment, and pay for, all Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the conditions set forth in Annex A are for Offer as promptly as practicable after the sole benefit expiration of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (International Business Machines Corp), Agreement and Plan of Merger (Software Artistry Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01 and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer circumstances set forth in Annex A hereto shall have been satisfied occurred or waived by be existing, Purchaser agrees to, and Parent agrees to cause Purchaser to, commence the PurchaserOffer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the first public announcement of the execution hereof. The Parent and Purchaser agree that the obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including that (i) the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer, combined with the Shares already owned by Parent, Purchaser or any of their affiliates, constitute at least 60% of the then outstanding Shares at the expiration of the Offer (the "Minimum Stock Condition"). Solely for purposes , (ii) Purchaser has acquired or is simultaneously acquiring not less than 66 2/3% in the aggregate principal amount of determining whether the Minimum Condition has been satisfiedoutstanding Notes (the "Note Purchase Condition"), any Shares owned by Parent or Purchaser and (iii) also shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offer. 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 or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, 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 eliminates the Note Purchase Condition, which reduces the Minimum Stock Condition to below 51% of the then outstanding Shares, which otherwise modifies or amends the conditions to the Offer or any other term of the Offer in a manner that is materially adverse to the holders of the Shares, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, hereto or which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period expiration date of the Offer beyond 45 days after the date of commencement of the OfferJanuary 4, or which otherwise amends the terms of the Offer 1999 (including any of the conditions set forth in Annex A) in a manner except that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) may extend the Offer if, at the scheduled expiration date of the OfferOffer through January 9, 1999 as required to comply with any rule, regulation or interpretation of the conditions Securities and Exchange Commission (the "SEC")). The Per Share Cash Amount shall, subject to applicable withholding of taxes, be net to the Purchaser's obligation seller in cash, upon the terms and subject to purchase Shares shall not be satisfied until such time as such the conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that Subject to the terms and conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions Offer (including, without limitation, the satisfaction Minimum Stock Condition), Purchaser agrees to, and Parent agrees to cause Purchaser to, pay, as promptly as practicable after expiration of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer, for all Shares validly tendered and not withdrawn.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hills Stores Co /De/), Agreement and Plan of Merger (HSC Acquisition Corp)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Article IX Section 7.01 and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied occurred or waived by be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including condition (the condition "Minimum Condition") that a number of Shares representing not less than at least a majority of the then outstanding ----------------- Shares, other than Shares on a fully diluted basis owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser and also shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offersatisfaction of the other conditions set forth in Annex A hereto. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVER-------- however, that, unless previously approved by that the Company in writing, Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, Offer or which reduces the maximum number of Shares to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, which broadens the scope subject to applicable withholding of such conditionstaxes, which increases the minimum number of Shares which must be tendered as a condition net to the acceptance for payment seller in cash, upon the terms and payment for shares in subject to the conditions of the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant . Subject to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement terms and conditions of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingPurchaser shall pay, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled as promptly as practicable after expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase for all Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerwithdrawn.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cobe Laboratories Inc), Agreement and Plan of Merger (Ren Corp Usa)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Article IX VII and (ii) none of the events or conditions set forth in Annex A shall have occurred or be existing and be existingnot have been waived, then, as promptly as practicable (but in any event not later than the first five (5) business day days after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution and delivery of this Agreement), Purchaser shall commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights Agreement"“Exchange Act”)), between the Company and First Interstate Bank Offer whereby Purchaser will offer to purchase for cash all of Californiathe Shares at the Per Share Amount (subject to reduction for any stock transfer taxes payable by the holders of such Shares, if payment is to be made to a Person other than the Person in whose name the certificate for such Shares is registered, or any applicable federal back-up withholding); provided, however, that Parent may designate another direct or indirect Subsidiary of Parent as the bidder thereunder (within the meaning of Rule 14d-1(c) under the Exchange Act, in which case references herein to Purchaser will be deemed to apply to such Subsidiary, as Rights Agent (collectivelyapplicable). Purchaser shall keep, and Parent shall cause Purchaser to keep, the "Shares"Offer open for a period of at least twenty (20) at a price business days after the commencement of $10.50 per Sharethe Offer (such period, net to the seller in cash“First Offer Period”). The Purchaser shall accept for payment and pay for all Shares which have In the event that the Minimum Condition has not been validly tendered and not withdrawn satisfied pursuant to the Offer during the First Offer Period, Purchaser shall keep, and Parent shall cause Purchaser to keep, the Offer open for a period of at least ten (10) business days after the earliest time following expiration of the First Offer that all conditions to Period (such period, the “Second Offer set forth in Annex A hereto shall have been satisfied or waived by Period” and together with the PurchaserFirst Offer Period, the “Offer Period”). The obligation of In the Purchaser to accept for paymentevent that, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn immediately prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether Expiration Date, the Minimum Condition has not been satisfiedmet, any Shares owned by Parent or Purchaser the Company shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or require Purchaser to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions Expiration Date for an additional period not to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or exceed twenty (ii20) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerdays.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Reinhold Industries Inc/De/), Agreement and Plan of Merger (Reinhold Acquisition Corp.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX its terms, Purchaser shall (and none Parent shall cause Purchaser to), commence (within the meaning of Rule 14d-2 under the Exchange Act), as promptly as reasonable and practicable but in no event later than five (5) Business Days after the date hereof, the Offer at the Offer Price. The obligation of Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the satisfaction or waiver of the events or conditions set forth in Annex A I, and (ii) the satisfaction or waiver of the conditions set forth in Annex II. The conditions to the Offer set forth in Annex I are for the sole benefit of Parent and Purchaser, and Parent and Purchaser reserve the right, in their sole discretion, subject to applicable Law to waive any such condition in Annex I. The initial expiration date of the Offer shall have occurred be 5:00 pm (EST) on the 40th calendar day following commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act). Notwithstanding the foregoing, Purchaser may (i) extend the Offer one or more times beyond the initial scheduled expiration date or any subsequent scheduled expiration date, but in no event beyond the 70th calendar day following the commencement of the Offer without the Company’s consent, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be existingsatisfied or, then, not later than to the first business day after execution of extent permitted by this Agreement, waived, and (ii) extend the Offer for any period required by any rule, regulation or interpretation of the SEC or the staff thereof applicable to the Offer; provided, however, that the foregoing clauses (i) and (ii) of this Section 1.01(a) shall not be deemed to impair, limit or otherwise restrict the right of any party to terminate this Agreement pursuant to the terms of Section 8.01 hereof. Notwithstanding the foregoing, if at the end of the 40th calendar day following commencement of the Offer or at the end of any subsequent scheduled expiration date, all conditions to the Offer have been satisfied and/or waived other than the Minimum Condition, Purchaser shall (and Parent shall issue a public announcement cause Purchaser to), if requested by the Company, extend the expiration of the execution Offer one or more times; provided, that Purchaser shall not be obligated to extend the Offer beyond 5:00 pm (EST) on the 70th calendar day following commencement of the Offer. Each extension of the Offer pursuant to this Section 1.01(a) shall not exceed the lesser of five (5) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser and the Company reasonably believe are necessary to cause the conditions of the Offer set forth in Annex I and Annex II hereto to be satisfied. Subject to the terms of this Agreement, Agreement and not later than the fifth business day after satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex I and Annex II hereto as of any expiration date of the public announcement of the execution of this AgreementOffer, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions promptly after it is permitted to the Offer set forth do so under applicable Law (but in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less no event later than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the three (3) Business Days after such expiration date of the Offer (the "Minimum Condition"Offer). Solely On or prior to the date that Purchaser becomes obligated to pay for purposes of determining whether Shares pursuant to the Minimum Condition has been satisfiedOffer, any Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares owned by Parent or that Purchaser shall be deemed becomes so obligated to have been validly tendered and not withdrawn pay for pursuant to the Offer. The Purchaser expressly reserves Offer Price shall, subject to any required withholding of Taxes, be net to the right to increase the price per Share payable seller in the Offer or to make any other changes in cash, without interest, upon the terms and subject to the conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sunterra Corp), Agreement and Plan of Merger (Diamond Resorts, LLC)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1 and none of the events or conditions set forth in Annex A I hereto shall have occurred and be existingcontinuing (and shall not have been waived by the Acquisition Sub), then, not later than the first business day within five (5) Business Days after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, Acquisition Sub shall commence (within the Purchaser shallmeaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all Shares at the Offer Price, subject to the provisions of this Agreement, commence a tender offer (the "Offer"A) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there being validly tendered and not withdrawn prior to the expiration date of the Offer that number of Shares which, together with the Shares purchasable under the Stock Purchase Agreement and the Shares then owned by Parent or Acquisition Sub on the date of this Agreement, represents at least seventy-five percent (75%) of the Shares outstanding on a fully-diluted basis, assuming the exercise of all options, warrants and rights with exercise prices of less than $1.60 per share and convertible securities outstanding on the Expiration Date (the "Minimum Condition"). Solely for purposes of determining whether , and (B) the Minimum Condition has been satisfied, any Shares owned by Parent satisfaction or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions waiver of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes other conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives I hereto (the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the OfferCondition, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of together with the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingI, collectively, the Purchaser may"Offer Conditions"); provided, without however, that in the consent event that the failure of any Offer Condition to be satisfied was caused solely by any material breach by Parent or Acquisition Sub of this Agreement and such failure has been waived by the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions Acquisition Sub shall be obligated to the Purchaser's obligation to purchase accept for payment and pay for Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Scientific Games Corp), Agreement and Plan of Merger (Mdi Entertainment Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VII and none of the events or conditions circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existingexisting (and shall not have been waived by Purchaser), thenPurchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, not as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than the first business day after execution of this Agreementten (10) Business Days, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the public announcement Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer or and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the Offer, which reduces the maximum number of Shares sought to be purchased in the Offer, which imposes conditions to the Offer in addition to those to, or modifies or amends, the conditions set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result or makes any other changes in less than a majority the terms of the Offer that are in any manner adverse to the holders of Shares being accepted for payment or paid for pursuant to the Offer, whichor, except as hereinafter set forth in this Subsection 1.01(a)provided below, extends the period expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond 45 the initial scheduled expiration date, which shall be twenty (20) business days after (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingsubsequent scheduled expiration date, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's ’s obligation to purchase accept for payment and to pay for Shares tendered shall not be satisfied until such time as such conditions are satisfiedor, or to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer for to a period date later than the Outside Date. Each extension of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this sentence if, on Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of such extensionthe Offer, more than two-thirds but less than 90 percent of Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares have been validly tendered and not properly withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. It is agreed On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the partiesOffer. The Company agrees that no Shares shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Collagenex Pharmaceuticals Inc), Agreement and Plan of Merger (Galderma Laboratories, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none no event shall have occurred and no circumstance shall exist which would result in a failure to satisfy any of the conditions or events or conditions set forth in Annex A shall have occurred hereto (the "Offer Conditions"), Purchaser shall, as soon as reasonably practicable after the date hereof (and be existing, then, not later than in any event within five business days from the first business day after execution date of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementhereof), commence a tender an offer (the "Offer") to purchase for cash all of the issued and outstanding shares of Common Stock, together with the associated rights issued pursuant par value $1.00 per share (referred to the Rights Agreement dated herein as of December 5, 1992, as amended (either the "Shares" or "Company Rights AgreementCommon Stock"), between of the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 37.00 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date satisfaction or waiver by Purchaser of the Offer (the "Minimum Condition")Conditions. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right right, in its sole discretion, to increase waive any such condition (other than the price per Share payable Minimum Condition as defined in the Offer or to Conditions) and make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by the Company in writing, no change may be made which changes the Minimum Condition or decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the OfferOffer (other than by adding consideration), which reduces the maximum number of Shares to be purchased in the Offer, which or amends the terms or Offer Conditions or imposes conditions or terms to the Offer in addition to those set forth herein which, in Annex A heretoeither case, which broadens are adverse to holders of the scope of such conditionsShares. Purchaser agrees that, which increases unless it is permitted to terminate this Agreement pursuant to Section 8.1(a), 8.1(b), 8.1(c)(ii) or 8.1(e), it can terminate the minimum number of Shares which must Offer only on a scheduled expiration date. Purchaser further agrees that: (A) in the event it would otherwise be tendered as a condition entitled to terminate the Offer at any scheduled expiration thereof due to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority failure of Shares being accepted for payment one or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any more of the conditions set forth in Annex Aparagraphs (a), (b), (c), (d)(i), (e) in a manner that is materially adverse or (h) of the Offer Conditions to holders of Shares. Notwithstanding be satisfied or waived, it shall give the foregoingCompany notice thereof and, at the Purchaser may, without the consent request of the Company, (i) extend the Offer if, at until the scheduled expiration date earlier of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until (1) such time as such condition is or conditions are satisfied, satisfied or waived and (2) the date chosen by the Company which shall not be later than (x) the Outside Date (as defined in Section 8.1) applicable to the condition or conditions with respect to which the extension is requested or (iiy) the earliest date on which the Company reasonably believes such condition or conditions will be satisfied; provided that if such condition is not or conditions are not satisfied by any date chosen by the Company pursuant to this clause (y), the Company may request further extensions of the Offer in accordance with the terms of this Section 1.2(a); and (B) in the event that it would otherwise be entitled to terminate the Offer at the initial scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied or waived, it shall, at the request of the Company (which request may be made by the Company only on one occasion), extend the Offer for a period of not more than 15 up to five business days beyond from such initial scheduled expiration date. Purchaser covenants and agrees that, subject to the latest expiration date that would otherwise be permitted under clause (i) terms and conditions of this sentence ifAgreement, on the date of such extension, more than two-thirds including but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant limited to the OfferOffer Conditions, it will accept for payment and pay for Shares as soon as it is permitted to do so under applicable law. It is agreed that the conditions set forth in Annex A Offer Conditions are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including except for any action or inaction by the Purchaser, unless any such action Purchaser or inaction by the Purchaser would constitute Parent constituting a breach by the Purchaser of any of its covenants under this Agreement) or or, except with respect to the Minimum Condition, may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Itt Industries Inc), Agreement and Plan of Merger (Goulds Pumps Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX On the terms and none of subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day as promptly as reasonably practicable after the date of the public announcement of the execution of this Agreementhereof, the Purchaser and in any event within seven (7) Business Days (as defined in Section 9.3(b) hereof) after such date, Merger Sub shall, subject to the provisions of this Agreementand Parent shall cause Merger Sub to, commence a tender offer (within the "Offer") for all meaning of Rule 14d-2 under the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (including the "Company Rights Agreement"), between the Company rules and First Interstate Bank of California, as Rights Agent (collectivelyregulations promulgated thereunder, the "Shares"“Exchange Act”)) at a price of $10.50 per Share, net to the seller in cashOffer. The Purchaser shall obligations of Merger Sub, and of Parent to cause Merger Sub, to accept for payment and pay for all any Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered not validly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver by Merger Sub of the conditions set forth in Annex Exhibit A heretohereto and the terms and conditions hereof (collectively, including the condition that a number of Shares representing not less than a majority “Offer Conditions”). Merger Sub may, in its sole discretion, waive any Offer Condition or modify the terms or conditions of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn Offer, except that, without the prior to the expiration date written consent of the Company, Merger Sub shall not (i) reduce the Offer Price, (ii) change the "Minimum Condition"). Solely for purposes form of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share consideration payable in the Offer or to make any (other changes in than by adding consideration), (iii) reduce the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions (iv) waive or change the Minimum Condition (as such term is defined in Exhibit A), (v) add to the Offer Conditions or modify them in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition manner adverse to the acceptance for payment and payment for shares in holders of Shares, (vi) extend the Offer, which waives expiration of the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, Offer except as hereinafter required or permitted by Section 1.1(b), (vii) modify any term of the Offer set forth in this Subsection 1.01(a)Agreement in a manner adverse to the holders of Shares, extends the period of the Offer beyond 45 days after the date of commencement of or (viii) abandon or terminate the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time except as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Trustco Holdings, Inc.), Agreement and Plan of Merger (Health Fitness Corp /MN/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and Section 8.01 hereof, none of the events or conditions set forth in on paragraphs (a) through (f) of Annex A II shall have occurred and be existingcontinuing and the Company is prepared (in accordance with Section 1.02(c)) to file with the United States Securities and Exchange Commission (the “SEC”) the Schedule 14D-9 on the same date as Merger Sub commences the Offer, then, not as promptly as practicable after the Agreement Date (and in any event no later than ten (10) Business Days after the first business day after execution date of initial public announcement of this Agreement, provided that the Company has so complied with the Pennsylvania Takeover Disclosure Law (to the extent actions are required to be taken by it) and is prepared to file with the SEC the Schedule 14D-9), Merger Sub shall, and Parent shall issue a public announcement cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the execution Securities Exchange Act of this Agreement1934, as amended (including the rules and not later than the fifth business day after the date of the public announcement of the execution of this Agreementregulations promulgated thereunder, the Purchaser shall“Exchange Act”)), subject the Offer to the provisions of this Agreement, commence a tender offer (the "Offer") for purchase all of the outstanding shares of Common Stock, together with Shares at the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer Price. The Purchaser shall obligation of Merger Sub to accept for payment and pay for all any Shares which have been validly tendered and not properly withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the scheduled expiration of the Offer (as it may be extended from time to time hereunder), and not properly withdrawn, a number of Shares that, together with the Shares then directly or indirectly owned by Parent, represents at least a majority of all Fully Diluted Shares immediately prior to the Share Acceptance Time (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in satisfaction of such guarantee) (the “Minimum Condition”), and (ii) the conditions set forth in Annex A hereto, including II (together with the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition", the “Offer Conditions”). Solely for purposes Merger Sub, or Parent on behalf of determining whether the Minimum Condition has been satisfiedMerger Sub, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable waive, in its sole and absolute discretion, in whole or in part, any of the Offer or Conditions and to make any other changes change in the terms and of or conditions of to the Offer; PROVIDEDprovided, HOWEVERhowever, that, that unless otherwise provided by this Agreement or previously approved by the Company in writingwriting (which approval may be granted or withheld by the Company in its sole and absolute discretion), (A) the Minimum Condition may not be waived or amended, (B) no change may be made which decreases the price per Share payable in the Offer, which that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Shares sought in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the OfferII, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.amends
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Stryker Corp), Agreement and Plan of Merger (Orthovita Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution provisions of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not as promptly as practicable but in no event later than the fifth five business day days after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to and Parent shall cause the provisions of this AgreementPurchaser to, commence a tender offer (within the "Offer") for all meaning of Rule 14d-2 under the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between ) the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. ------------ The obligation of the Purchaser to, and of Parent to cause the Purchaser to, accept for payment, purchase and pay for Shares for, any shares of Common Stock tendered pursuant to the Offer shall be subject to the (i) the Minimum Condition (as defined in Annex A), (ii) the condition that the Purchaser shall have received the Financing (as defined below) contemplated by the commitment letter dated September 11, 1997 (the "Financing Commitment Letter"), pursuant to which, subject to certain terms --------------------------- and conditions thereof, the lenders named therein have committed to provide all of the Financing (the "Financing") necessary to consummate the Offering and the --------- Merger and the transactions contemplated hereby (the "Financing Condition") and ------------------- (iii) conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered attached hereto and not withdrawn prior to the expiration date other conditions of this Agreement. On the terms and subject to the conditions of the Offer (and this Agreement, the "Minimum Condition"). Solely Purchaser shall, and Parent shall cause the Purchaser to, pay for purposes all shares of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been Common Stock validly tendered and not withdrawn pursuant to the Offer that the Purchaser becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. The Purchaser expressly reserves the right to increase modify the terms of the Offer and to waive any condition of the Offer, except that, without the consent of the Company, the Purchaser shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per Share payable in the Offer or to make any other changes in the terms and conditions share of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration Common Stock to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, (iii) modify or which otherwise amends the terms of the Offer (including any of add to the conditions set forth in Annex A) A or otherwise amend the Offer in a any manner that is materially adverse to holders the Company's stockholders, (iv) except as provided in the next two sentences, extend the Offer, or (v) change the form of Sharesconsideration payable in the Offer. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at for a period of not more than 10 business days beyond the scheduled initial expiration date of the Offer (which initial expiration date shall be 20 business days following commencement of the Offer), if on the date of such extension less than 90% of the outstanding shares of Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (ii) extend the Offer from time to time if at the initial expiration date or any extension thereof the Minimum Condition or any of the other conditions to the Purchaser's obligation to purchase Shares shares of Common Stock set forth in paragraphs (a), (b) and (e) of Annex A shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (iiiii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer and (iv) extend the Offer for any reason for a period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence ifsentence. In addition, on the Purchaser shall at the request of the Company extend the Offer for five business days if at any scheduled expiration date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the Purchaser at any time to exercise Offer any of the foregoing rights conditions to the Purchaser's obligation to purchase shares of Common Stock shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or satisfied; provided, however, that the Purchaser with respect shall not be required to any of extend the foregoing conditions (includingOffer beyond November 30, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer1997.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hain Food Group Inc), Agreement and Plan of Merger (Hain Food Group Inc)
The Offer. (a) Provided that this Agreement shall not have --------- been terminated in accordance with Article IX Section 7.01, Merger Subsidiary shall, and none Parent shall cause Merger Subsidiary to, commence within the meaning of Rule 14d-2 under the Exchange Act (as hereinafter defined) the Offer as promptly as practicable after the date hereof, but in no event later than five business days after the initial public announcement of Parent's intention to commence the Offer. The Offer shall have a scheduled Expiration date 20 business days following commencement of the events Offer (the "Initial Expiration Date"). Notwithstanding any contrary provision of this Agreement, Merger Subsidiary (i) if so requested by the Company at the direction of the Special Committee, will extend the Offer for up to ten business days following in the event upon the Initial Expiration Date, Merger Subsidiary shall not have accepted for payment Shares pursuant to the Offer as a result of one or more of the conditions set forth in Annex A hereto not having been satisfied or waived by Merger Subsidiary and (ii) at its discretion may determine from time to time to extend the Offer for no more than an aggregate of ten business days following the later of the Initial Expiration Date and the first expiration date thereafter on which all of the conditions set forth in Annex A shall have occurred and be existingbeen satisfied or waived, thenif applicable, not later than provided, however, that in the first business day after execution of event that Parent extends the Offer pursuant to this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer clause (the "Offer"ii) for all of the outstanding shares conditions to the Offer shall be deemed to have been irrevocably satisfied for all purposes of Common Stockthe Offer and shall not be asserted by Parent as a basis for not consumating the Offer and (iii) may, together with from time to time at its discretion, extend the associated rights issued Offer in increments of up to ten business days each, if one or more of the conditions set forth in Annex A shall not have been satisfied or waived. Parent shall not accept for payment any Shares tendered pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser Offer unless there shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant prior to the Offer at the earliest time following expiration of the Offer that all conditions such number of Shares which, constitutes at least a majority of the Shares not beneficially owned by Parent or Merger Subsidiary on a fully diluted basis (the "Minimum Condition"). In addition to the Offer set forth in Annex A hereto shall have been satisfied or waived by Minimum Condition, the Purchaser. The obligation of the Purchaser Parent to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Per Share payable in Amount. Without the Offer or to make any other changes in the terms and conditions prior consent of the Offer; PROVIDEDSpecial Committee, HOWEVER, that, unless previously approved by Parent will not (i) decrease the Company in writing, no Per Share Amount (ii) change may be made 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 imposes Offer (iii) change the form of the consideration payable in the Offer (iv) amend or add to the conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares ; or (v) make any other change in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment terms or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period conditions of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to the holders of Shares. Notwithstanding Under no circumstances shall Parent waive the foregoingMinimum Condition. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to the Purchaser mayseller in cash, without upon the consent of terms and subject to the Company, (i) extend the Offer if, at the scheduled expiration date conditions of the Offer, any . Following the satisfaction or waiver of the conditions to the Purchaser's obligation Offer, Parent shall cause Merger Subsidiary to purchase accept for payment and pay for, in accordance with the terms of the Offer, all Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It Offer and not withdrawn, as soon as it is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise permitted to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time do so pursuant to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerapplicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rexel Sa), Agreement and Plan of Merger (Pinault Printemps Redoute Sa Et Al)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution provisions of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not as promptly as practicable but in no event later than the fifth five business day days after the date of the public announcement of by Parent and the execution Company of this Agreement, the Purchaser Sub shall, subject to the provisions of this Agreementand Parent shall cause Sub to, commence a tender offer (the "Offer") . The initial expiration date for all the Offer shall be the 20th business day following the commencement of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserOffer. The obligation of the Purchaser Sub to accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex Exhibit A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum ConditionOffer Conditions"). Solely for purposes ) (any of determining whether which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered (as defined in Exhibit A)) and not withdrawn pursuant to the Offerterms and conditions of this Agreement. The Purchaser Sub expressly reserves the right to increase modify the price per Share terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or to make (vi) amend any other changes in the terms and conditions term of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition any manner adverse to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period holders of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser Sub may, without the consent of the Company, (iA) extend the Offer ifOffer, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (iiB) extend the Offer for a any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clause (iA) or (B) of this sentence ifsentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Parent and Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer 7 then, provided that all such extensionconditions are reasonably capable of being satisfied, more than two-thirds but less than 90 percent Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond September 28, 1998. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the conditions set forth in Annex A are for Offer as promptly as practicable after the sole benefit expiration of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lucent Technologies Inc), Agreement and Plan of Merger (Yurie Systems Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 hereof and none of the events or conditions set forth in Annex A no event shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent no circumstance shall issue exist which would result in a public announcement failure to satisfy any of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer or events set forth in Annex A hereto (the "Offer Conditions"), Purchaser shall have been satisfied or waived by commence the Offer at the initial Per Share Amount as soon as reasonably practicable after the date hereof, and in any event within five business days from the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of the Purchaser to accept for payment, purchase and pay for payment the Specified Number of Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including condition (the condition "Minimum Condition") that a number of at least 6.5 million Shares (representing not less than a majority approximately 81% of the Shares on a fully diluted basis outstanding Company Common Stock as of the date of this Agreement) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfiedOffer, any Shares owned by Parent or Purchaser and also shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offersatisfaction of the other Offer Conditions. The Purchaser expressly reserves the right right, in its sole discretion, to increase the price per Share payable in the Specified Number, waive any Offer or to Condition and make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, no change may be made which decreases the price per initial Per Share payable in the OfferAmount, which changes the form of consideration to be paid payable in the OfferOffer (other than by adding consideration), which reduces the maximum number of Shares to be purchased in Specified Number, changes the OfferMinimum Condition, which or imposes conditions to the Offer in addition to those set forth in Annex A hereto, herein which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially are adverse to holders of the Shares. Purchaser covenants and agrees that, subject to the terms and conditions of this Agreement, including but not limited to the Offer Conditions, it will accept for payment and pay for up to the Specified Number of Shares (in accordance with the proration provisions of Section 1.1(b), if necessary) as soon as practicable after it is permitted to do so under applicable law, subject to the prior satisfaction of the Offer Conditions. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date (the initial scheduled expiration date being 20 business days following the commencement of the Offer) if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation obligations to purchase Shares accept for payment, and to pay for, the Shares, shall not be satisfied until such time as such conditions are satisfiedor waived, or (ii) extend the Offer for a any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 15 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence sentence, if as of such date, all of the conditions to Purchaser's obligations to accept for payment, and to pay for, the Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer equals at least the Minimum Condition but less than the Specified Number, of the outstanding Shares; provided, however, that if, on the initial scheduled expiration date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for , the sole benefit condition remaining unsatisfied is the failure of the Parent and waiting period under the Purchaser and may be asserted by Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the Parent "HSR Act"), to have expired or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaserbeen terminated, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaserthen, in whole or in part at any time and either case, Purchaser shall extend the Offer from time to time, in its sole discretion. The failure by time until five business days after the Parent expiration or the Purchaser at any time to exercise any termination of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by applicable waiting period under the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferHSR Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dh Technology Inc), Agreement and Plan of Merger (Ax Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 hereof and none of the events or conditions set forth in Annex A I shall have occurred and be existing, then, not as promptly as practicable (but in no event later than the first five business day days after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement), the Purchaser shall, subject to shall commence (within the provisions meaning of this Agreement, commence a tender offer (Rule 14d-2 under the "Offer") for all Securities Exchange Act of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserPrice. The obligation obligations of the Purchaser to accept for payment, purchase payment and to pay for any Shares validly tendered pursuant on or prior to the expiration of the Offer and not withdrawn shall be subject only to the conditions set forth in Annex I hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") subject to the conditions set forth in Annex A I hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves shall not, without the right to increase prior written consent of the price per Share payable in Company, (i) decrease the Offer Price or to make any other changes in change the terms and conditions form of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share consideration payable in the Offer, which changes (ii) decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares sought to be purchased in the Offer, which imposes (iii) impose conditions to the Offer in addition to those set forth in Annex A heretoI, which broadens (iv) amend any condition of the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter Offer set forth in this Subsection 1.01(a)Annex I, extends (v) extend the period of initial expiration date (the Offer beyond 45 days after the date of commencement "Initial Expiration Date") of the Offer, or which otherwise amends except as required by law and except (A) that the terms Purchaser may extend the expiration date of the Offer for up to ten (including any 10) business days after the Initial Expiration Date if as of the conditions set forth Initial Expiration Date there shall not have been tendered at least ninety percent (90%) of the outstanding Shares so that the Merger can be effected without a meeting of the Company's shareholders in Annex Aaccordance with VSCA, (B) that in the event that any condition to the Offer is not satisfied on a manner that date on which the Offer is materially adverse scheduled to holders of Shares. Notwithstanding the foregoingexpire, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by , extend the Parent or expiration date of the Offer up to a maximum of one hundred twenty (120) calendar days following the Initial Expiration Date, (C) in the event that any condition to the Offer is not satisfied on a date on which the Offer is scheduled to expire, at the written request of the Company delivered no later than two business days prior to the Initial Expiration Date, the Purchaser at any time to exercise any of shall, and shall continue to, extend the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and Offer from time to time. Any determination by time for the Parent or period commencing on the date of the notice referred to above until a date not later than ninety (90) calendar days following the Initial Expiration Date (it being understood that the Purchaser with respect to may determine the interim expiration dates of any extension of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.Offer during such
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Best Software Inc), Agreement and Plan of Merger (Sage Group PLC)
The Offer. (a) Provided that this Agreement shall not --------- have been terminated in accordance with Article IX VIII and so long as none of the events or conditions set forth in Annex A (the "Tender Offer Conditions") shall have occurred and be existingno fact, then, not later than the first business day after execution of this Agreement, the Parent occurrence or circumstance shall issue exist which would result in a public announcement failure to satisfy any of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shallTender Offer Conditions, subject to the provisions of this Agreement, commence a tender offer as promptly as reasonably practicable, but in no event later than seven (7) Business Days following the "Offer") for all first public announcement of the outstanding shares terms of Common Stockthis Agreement, together with Acquiror shall commence, within the associated rights issued pursuant to meaning of Rule 14d-2 under the Rights Agreement dated Exchange Act (as of December 5, 1992, as amended (the "Company Rights Agreement"hereinafter defined), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following Offer Price. The initial expiration date of the Offer that all conditions to shall be the twentieth Business Day following the date the Offer set forth in Annex A hereto shall have been satisfied or waived by is commenced within the Purchasermeaning of Rule 14d-2 under the Exchange Act (the "Initial Expiration Date"). The obligation of Acquiror to commence the Purchaser to Offer and accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A heretoA, including any of which, other than the condition that a Minimum Condition (as defined in Annex A), may be waived by Parent or Acquiror in their sole discretion. Parent and Acquiror expressly reserve the right to modify the terms of the Offer; provided -------- that, without the prior written consent of the Company, neither Parent nor Acquiror shall (i) waive the Minimum Condition, (ii) reduce the number of Shares representing not less than a majority subject to the Offer, (iii) reduce the price per Share to be paid pursuant to the Offer, (iv) change the form of consideration payable in the Offer, (v) amend any term or add any condition of the Shares Offer (including the conditions set forth on a fully diluted basis Annex A), in each case, in any manner that would adversely affect the shareholders of the Company in any material respect or (vi) extend the Initial Expiration Date, except as required by law and except that Parent and the Acquiror shall have been validly tendered and not withdrawn prior the right, in their sole discretion, (A) to extend the expiration date of the Offer for up to ten (10) Business Days after the "Minimum Condition")Initial Expiration Date if as of that date there shall not have been tendered a number of Shares that, when added to the number of Shares subject to the Voting Agreement, constitute at least ninety percent (90%) of the outstanding shares of Common Stock on a fully-diluted basis, (B) to elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the Exchange Act or (C) to extend the expiration date of the Offer from time to time for successive periods of up to 20 Business Days each, but in no event later than the four month anniversary of the date of this Agreement, if the conditions set forth in Annex A have not been met. Solely for purposes If on any scheduled expiration date of determining whether the Minimum Condition has been satisfiedOffer, the Offer would have expired without any Shares owned by being purchased because the conditions set forth in Annex A have not been met, Parent or Purchaser and Acquiror shall, at the request of the Company (subject always to the terms and conditions of this Agreement, including Article VIII), extend the expiration date of the Offer from time to time for successive periods of up to 20 Business Days each (but in no event later than the four-month anniversary of the date of this Agreement) unless Parent reasonably believes at such time that such conditions are not capable of being satisfied. Subject to the terms and conditions of the Offer set forth in Annex A, Acquiror shall be deemed to have been pay for all Shares validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves Offer as soon after the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period expiration of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that as it is materially adverse legally permitted to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted do so under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerapplicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pine Holdings Inc), Agreement and Plan of Merger (Pulaski Furniture Corp)
The Offer. (a) Provided that In accordance with the provisions of this Agreement and provided that nothing shall not have been terminated occurred which would result in accordance with Article IX and none a failure of any of the events or conditions set forth in Annex A shall have occurred A, attached hereto and be existingmade a part hereof, thenas promptly as practicable, not and in no event later than the first fifth (5th) business day after execution of this Agreementfollowing the date hereof, the Parent shall issue a public announcement of cause the execution of this AgreementPurchaser to, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shallshall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, subject to as amended (the provisions of this Agreement"Exchange Act"), commence a tender offer (as it may be amended from time to time as permitted hereunder, the "Offer") for all of the issued and outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") of the Common Stock (defined hereafter) at a price of Twenty Three Dollars and Forty Cents ($10.50 23.40) per Share, share net to the seller in cash. The Purchaser shall accept for payment , without interest thereon (such price or such higher price per share as may be paid in the Offer, being referred to herein as the "Share Price"), which Offer, and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer Offer, shall be in accordance with the terms of this Agreement, subject to the conditions set forth in Annex A hereto. The Purchaser shall, including subject only to the condition that a number of Shares representing not less than a majority satisfaction or waiver of the conditions set forth on Annex A hereto, accept for payment and pay for all Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition (as defined in Annex A hereto) and the other conditions set forth in Annex A hereto. Notwithstanding the foregoing, the Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to and make any other changes in to the terms and or conditions of the Offer; PROVIDEDOffer (or waive in whole or in part, HOWEVERat the sole discretion of the Purchaser any of such conditions), thatprovided, unless previously approved however, that the Purchaser will not, without the prior written consent of the Company (such consent to be authorized by the Company in writingBoard of Directors of the Company), no change may be made which decreases (i) waive the price per Share payable Minimum Condition, (ii) subject to clause (z) of the proviso in the Offerimmediately following sentence, which changes extend the Offer if all of the Offer conditions are satisfied or waived, (iii) decrease the Share Price, change the form of consideration to be paid payable in the Offer, which reduces Offer or decrease the maximum number of Shares to be purchased in the Offersought, which imposes (iv) impose additional conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth (v) waive the condition described in this Subsection 1.01(a), extends clause (x) of Annex A hereto or (vi) amend the period conditions of the Offer beyond 45 days after or any other term of the Offer in any manner adverse to the holders of Shares (other than insignificant changes or amendments or other than to waive any condition). The initial expiration date of the Offer shall be 20 business days following commencement of the Offer, or which otherwise amends the terms of the Offer (including any of such date and time, as may be extended in accordance with the conditions set forth terms hereof, is referred to as the "Expiration Date"); provided, however, and notwithstanding anything in Annex A) in a manner the foregoing to the contrary, it is understood and agreed that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, from time to time, in its sole discretion extend the Expiration Date, but not beyond September 24, 1997, without the consent of the Company, Company (ix) extend the Offer if, at the scheduled expiration date of the Offer, if any of the conditions to the Purchaser's obligation to purchase Shares shall Offer have not be satisfied until such time as such conditions are been satisfied, for the minimum period of time necessary to satisfy such condition; (y) for any period required by any order, decree or ruling of, or any rule, regulation, interpretation or position of, any Governmental Entity (as hereafter defined) applicable to the Offer; or (iiz) extend the Offer for a period of not more than 15 five business days beyond the latest expiration date that would otherwise be permitted under clause (ix) or (y) of this sentence ifsolely for the purpose of obtaining valid tenders (which are not withdrawn) of 90% of the Shares. A record holder who validly tenders, on and does not withdraw, pursuant to the date Offer at least 500,000 shares of Common Stock which such holder beneficially owns, may receive, upon acceptance of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn shares by the Purchaser pursuant to the Offer. It is agreed that , payment therefor by wire transfer of immediately available funds to an account in the conditions set forth United States designated in Annex A writing by such holder at the time such shares are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise tendered pursuant to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Tender Agreement (Ibp Inc), Agreement and Plan of Merger (Foodbrands America Inc)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Article IX VIII and that none of the events or conditions set forth in Annex Paragraph (2) of Exhibit A hereto shall exist or have occurred and be existingcontinuing, thenPurchaser shall, not and Parent shall cause Purchaser to, promptly (but in no event later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day tenth (10th) Business Day after the date hereof, provided that the Company shall be prepared to disseminate to its stockholders its Schedule 14d-9 and Schedule 14f-1 within such time period) commence (within the meaning of Rule 14d-2 under the public announcement Securities Exchange Act of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights Agreement"“Exchange Act”), between ) the Company and First Interstate Bank of California, as Rights Agent (collectively, Offer to purchase all outstanding Shares at the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer Price. The obligations of Purchaser shall (and of Parent to cause Purchaser) to accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A (the “Offer Conditions”). The initial expiration date of the Offer shall be the twentieth (20th) Business Day following (and including the day of) the commencement of the Offer. Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any Offer Condition or modify or amend the terms of the Offer, except that, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer, (C) amend or waive the Minimum Tender Condition (as defined in Exhibit A), (D) add to the conditions set forth on Exhibit A, (E) modify the conditions set forth on Exhibit A in Annex A heretoa manner materially adverse to the holders of Shares, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to (F) extend the expiration date of the Offer except as required or permitted by Section 1.1(a)(ii) or (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to G) make any other changes change in the terms and or conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made Offer 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 imposes conditions is adverse to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Glaxosmithkline PLC), Agreement and Plan of Merger (Sirtris Pharmaceuticals, Inc.)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated in accordance with Article IX and none occurred that would give rise to a right to terminate the Offer pursuant to any of the events or conditions set forth in Annex A shall have occurred and be existingI, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day as promptly as practicable after the date of hereof, but in no event later than five Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Purchaser shall, subject Offer to (i) increase the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant purchase price to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 89.50 per Share, net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and no others, (iii) provide that the expiration date shall be February 7, 2008 and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Purchaser 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 and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents at least a majority of the total number of Shares outstanding on a fully-diluted basis (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the conditions to the Offer set forth in Annex I or amends any other term of the Offer in any manner adverse to the stockholders of the Company and (C) the expiration date shall not be extended except as otherwise provided herein. Notwithstanding the foregoing, (x) Merger Subsidiary shall extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Select Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 10.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for for, as promptly as practicable after the expiration of the Offer, all Shares which have been (1) validly tendered and not withdrawn pursuant to the Offer at and (2) validly tendered in the earliest time following expiration of Subsequent Offering Period (the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept date on which Shares are first accepted for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"“Acceptance Date”). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ventana Medical Systems Inc), Agreement and Plan of Merger (Roche Holding LTD)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution provisions of this Agreement, as promptly as practicable but in no event later than five business days after the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser Sub shall, subject to the provisions of this Agreementand Parent shall cause Sub to, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser Sub to, and of Parent to cause Sub to, accept for payment, purchase and pay for Shares for, any shares of Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in Annex Exhibit A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date other conditions of the Offer (the "Minimum Condition")this Agreement. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Sub expressly reserves the right to increase modify the terms of the Offer and to waive any condition of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per Share share of Common Stock to be paid pursuant to the Offer, (iii) modify or add to the conditions set forth in Exhibit A or otherwise amend the Offer in any manner materially adverse to the Company's stockholders, (iv) except as provided in the next two sentences, extend the Offer, (v) change the form of consideration payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives (vi) waive or modify the Minimum Tender Condition if such waiver would result (as defined in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(aExhibit A), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser Sub may, without the consent of the Company, (i) extend the Offer if, at for a period of not more than 10 business days beyond the scheduled initial expiration date of the Offer (which initial expiration date shall be 20 business days following commencement of the Offer), if on the date of such extension less than 90% of the outstanding shares of Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (ii) extend the Offer from time to time if at the initial expiration date or any extension thereof the Minimum Tender Condition or any of the other conditions to the PurchaserSub's obligation to purchase Shares shares of Common Stock set forth in paragraphs (a), (b) and (e) of Exhibit A shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (iiiii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iv) extend the Offer for any reason for a period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence ifsentence. In addition, on Sub shall at the request of the Company extend the Offer for five business days if at any scheduled expiration date of such extensionthe Offer any of the conditions to Sub's obligation to purchase shares of Common Stock shall not be satisfied; provided, more than two-thirds but less than 90 percent however, that Sub shall not be required to extend the Offer beyond December 31, 1997. On the terms and subject to the conditions of Shares have been the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer. It is agreed Offer that Sub becomes obligated to purchase pursuant to the conditions set forth in Annex A are for Offer as soon as practicable after the sole benefit expiration of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Stant Corp), Agreement and Plan of Merger (Tomkins PLC)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution provisions of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not as promptly as practicable but in no event later than the fifth five business day days after the date of the public announcement of by Parent and the execution Company of this Agreement, the Purchaser Sub shall, subject to the provisions of this Agreementand Parent shall cause Sub to, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of Sub to, and of Parent to cause Sub to, commence the Purchaser to Offer and accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex Exhibit A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum ConditionOffer Conditions"). Solely for purposes ) (any of determining whether which may be waived in whole or in part by Sub in its sole discretion, provided that, without the consent of the Company, Sub shall not waive the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer(as defined in Exhibit A)). The Purchaser Sub expressly reserves the right to increase modify the price per Share terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) modify or add to the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or to make (vi) amend, waive or add any other changes in the terms and conditions term of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition any manner adverse to the acceptance for payment and payment for shares in Company or the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser Sub may, without the consent of the Company, (i) extend the Offer if, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied or waived until such time as such conditions are satisfiedsatisfied or waived, or (ii) extend the Offer for a any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer, (iii) extend the Offer on one or more occasions for an aggregate period of not more than 15 five business days beyond the scheduled or extended expiration date if as of such expiration date sufficient Shares have not been tendered in order for the Merger to be effected without a vote of the Company's shareholders pursuant to Section 450.1711 of the MBCA and (iv) extend the Offer for any reason on one or more occasions for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence ifsentence. So long as this Agreement is in effect and the Offer Conditions have not been satisfied or waived, on Sub shall, and Parent shall cause Sub to, cause the Offer not to expire. In the event that the Company delivers to Parent a Section 9.1(e) Notice (as defined in Section 9.1(e)), Sub shall extend the Offer to the earlier of (i) a date that is not earlier than seven business days following the date of such extensiondelivery, more unless the Offer would otherwise not expire prior thereto, or (ii) the termination of this Agreement by the Company pursuant to Section 9.1(e). In the event that Parent delivers to the Company the notice contemplated in paragraph (d) or (e) of Exhibit A, Sub shall extend the Offer to a date not earlier than two-thirds but less than 90 percent two business days following the end of the 20- day cure period contemplated in such paragraph (d) or (e) or, if earlier, the date on which the breach or failure to perform or comply, as the case may be, is cured, unless the Offer would otherwise not expire prior thereto. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for and pay for, all Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the conditions set forth in Annex A are for Offer as soon as practicable after the sole benefit expiration of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Scotsman Industries Inc), Agreement and Plan of Merger (Kysor Industrial Corp /Mi/)
The Offer. (a) Provided that Subject to the conditions of this Agreement Agreement, as promptly as reasonably practicable, Sub shall, and Parent shall not have been terminated in accordance with Article IX cause Sub to, commence within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (such Act and none the rules and regulations promulgated thereunder being referred to herein as the "Exchange Act") the Offer. The obligations of Sub to, and of Parent to cause Sub to, commence the events or Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Annex Exhibit A attached hereto. Sub expressly reserves the right to waive any condition to the Offer or amend or modify the terms of the Offer, except that, without the written consent of the Company, Sub shall have occurred not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Merger Consideration per share of Company Common Stock to be paid pursuant to the Offer, (iii) waive the Minimum Tender Condition, add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, or (iv) change the form of consideration payable in the Offer. Parent and be existing, Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not later than be required to extend the first business day after execution Offer beyond February 10, 2002. On the terms and subject to the conditions of the Offer and this Agreement, the Sub shall, and Parent shall issue a public announcement of the execution of this Agreementcause Sub to, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions Sub becomes obligated to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to promptly after the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Alpnet Inc), Agreement and Plan of Merger (Alpnet Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 9.1 hereof and that none of the events or conditions set forth in Annex A 1 hereto shall have occurred and or be existing, thenas promptly as practicable, not later than but in any event within five business days of the first business day after execution date of this Agreement, the Parent shall issue a public announcement of the execution of this AgreementMerger Sub shall, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this AgreementParents shall cause Merger Sub to, commence a tender an offer (the "Offer") to purchase for cash all shares of the issued and outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended par value $.01 per share (the "Company Rights AgreementCommon Stock"), between ) of the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 11.00 per Share, net to share in cash (the seller in cash"Offer Price"). The Purchaser shall obligations of Merger Sub to accept for payment and to pay for all Shares which have been any shares of Common Stock validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in on Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer 1 hereto (the "Minimum ConditionTender Offer Conditions"). Solely for purposes of determining whether Without the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the written consent of the Company, (i) extend the Offer ifprior to termination of this Agreement, at the scheduled expiration date of Merger Sub shall not terminate the Offer, any decrease the Offer Price, decrease the number of shares of Common Stock being sought in the Offer, change the form of consideration payable in the Offer (other than by adding consideration), add additional conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfiedOffer, or (ii) extend make any other change in the terms or conditions of the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant which is adverse to the Offerholders of shares of Common Stock, it being agreed that neither a waiver by Merger Sub of any Tender Offer Condition (other than the Minimum Condition (as defined in Annex 1 hereto)) in whole or in part at any time and from time to time in its discretion, nor the extension of the Offer as permitted in subsection (b) below, shall be deemed to be adverse to any holder of shares of Common Stock. It is agreed that the conditions set forth in on Annex A I are for the sole benefit of the Parent Parents and the Purchaser Merger Sub and may be asserted by the Parent Parents or the Purchaser Merger Sub regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent Parents or the PurchaserMerger Sub, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent Parents or the Purchaser 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 which may be asserted at any time and from time to time. Any determination by the Parent Parents or the Purchaser Merger Sub with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares shares of Common Stock held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Merger Agreement (Katz Media Group Inc), Merger Agreement (Katz Media Group Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 9.01 below and none of the events or conditions set forth in clauses (a) through (i) of Annex A hereto shall have occurred and be existingcontinuing to exist, thenPurchaser shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof, not but in no event later than 10 business days after the first business day after execution of this Agreement, the Parent shall issue a initial public announcement of the execution and delivery of this Agreement, and not later than the fifth business day after the . The initial expiration date of the public announcement Offer shall be 20 business days after the commencement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including condition (the condition "Minimum Condition") that a at least the number of Shares representing not less than a majority that shall constitute fifty and six-tenths percent (50.6%) of the then outstanding Shares on a fully diluted basis Fully Diluted Basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser and also shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offersatisfaction of each of the other conditions set forth in Annex A hereto. The Purchaser expressly reserves the right to waive any such condition other than the Minimum Condition, to increase the cash price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by that without the Company in writingCompany's prior written consent, no change may be made which decreases the cash price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, Offer or which reduces the maximum number of Shares to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, hereto or which otherwise amends adversely affects the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at from time to time for the scheduled expiration date shortest time periods which the Purchaser reasonably believes are necessary until the consummation of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 15 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer equals 80% or more, but less than 90%, of outstanding Shares on a Fully Diluted Basis. In addition, if, on the then applicable expiration date of such extensionthe Offer, more than twothe sole condition(s) remaining unsatisfied are (i) the failure of the waiting period under the Hart-thirds but less than 90 percent Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act") or under any applicable material non-United States statutes or regulations, (ii) the process pursuant to the Exon-Florxx Xxxvision (as hereinafter defined) has not been completed, and/or (iii) any waiting period applicable to the consummation of the Offer under the Arms Regulations shall not have expired or been terminated then, Purchaser shall extend the Offer from time to time until 11 7 the earlier to occur of (i) January 31, 2001 and (ii) the fifth business day after the latest to occur of (A) the expiration or termination of the applicable waiting period under the HSR Act or any applicable material non-United States statutes or regulations, (B) the satisfaction of any requirements under the Exon-Florxx Xxxvision, as applicable, and (C) the expiration or termination of the waiting period under the Arms Regulations. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Purchaser shall pay for all Shares have been validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. It is agreed that Notwithstanding the conditions set forth in Annex A are for immediately preceding sentence and subject to the sole benefit applicable rules of the Parent SEC and the Purchaser terms and may be asserted by the Parent or the Purchaser regardless conditions of the circumstances giving rise Offer, Purchaser expressly reserves the right to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, delay payment for Shares in order to comply in whole or in part at any time and from time with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If the payment equal to time, the Per Share Amount in its sole discretion. The failure by cash (the Parent or "Merger Consideration") is to be made to a person other than the Purchaser at any time to exercise any person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the foregoing rights shall not be deemed a waiver of any such right and each such right Company, it shall be deemed an ongoing right which may a condition of payment that the certificate so surrendered shall be asserted at any time endorsed properly or otherwise be in proper form for transfer and from time to time. Any determination that the person requesting such payment shall have paid all transfer and other taxes required by the Parent or the Purchaser with respect to any reason of the foregoing conditions (includingpayment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, without limitation, or shall have established to the satisfaction of Purchaser that such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offertaxes either have been paid or are not applicable.
Appears in 2 contracts
Samples: Microwave Power Devices Inc, Ericsson MPD Acquisition Corp
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied occurred or waived by be existing, the PurchaserMerger Sub shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of the Merger Sub's intention to commence the Offer. The obligation of the Purchaser Merger Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including condition (the condition "Minimum Condition") that a at least the number of Shares representing not less than that, when added to the Shares already owned by Acquiror, shall 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 outstanding options, warrants or rights) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfiedOffer, any Shares owned by Parent or Purchaser which shall be deemed to have been validly tendered 20 business days after the date the Offer is commenced, and not withdrawn pursuant also shall be subject to the Offersatisfaction of the other conditions set forth in Annex A hereto. The Purchaser Merger Sub expressly reserves 5 the right to waive any such condition, to increase the price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made 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 minimum number of Shares to be purchased in the OfferOffer or, which amends or imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, which broadens the scope subject to applicable withholding of such conditionstaxes, which increases the minimum number of Shares which must be tendered as a condition net to the acceptance for payment seller in cash, upon the terms and payment for shares in subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition), the Merger Sub shall pay, as soon as practicable after it is legally permitted to do so under applicable law after expiration of the Offer, which waives for all Shares validly tendered and not withdrawn; provided, however, that if, immediately prior to the Minimum Condition if such waiver would result in less than a majority expiration date of the Offer, the Shares being accepted for payment or paid for tendered and not withdrawn pursuant to the Offer, whichwhen added to the Shares already owned by Acquiror, except as hereinafter set forth in this Subsection 1.01(a), extends the period equal less than 90% of the then outstanding Shares, the Merger Sub may extend the Offer beyond 45 days after one time for a period not to exceed 20 business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer. (b) As soon as reasonably practicable on the date of commencement of the Offer, the Merger Sub shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer. The Schedule 14D-1 shall contain or which otherwise amends shall incorporate by reference an offer to purchase (the terms "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (the Schedule 14D-1, the Offer (including to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Acquiror, the Merger Sub and the Company agree to correct promptly any information provided by any of them for use in the conditions set forth in Annex A) in a manner that is materially adverse Offer Documents which shall have become false or misleading, and Acquiror and the Merger Sub further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Notwithstanding The Company and its counsel shall be given the foregoingopportunity to review the Schedule 14D-1 before it is filed with the SEC. In addition, Acquiror and the Merger Sub will provide the Company and its counsel in writing with any comments, whether written or oral, Acquiror, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, Merger Sub or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and their counsel may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and receive from time to time, in time from the SEC or its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser staff with respect to any of the foregoing conditions (including, without limitation, Offer Documents promptly after the satisfaction receipt of such conditions) shall be final and binding on the partiescomments. The Company agrees that no Shares held by the Company will be tendered in the Offer.Section 1.2
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Horizon Acquisition Inc), Exhibit 1 Agreement and Plan of Merger (Ameriwood Industries International Corp)
The Offer. (a) Provided that this Agreement shall not --------- have been terminated in accordance with Article IX Section 8.1 hereof and none of the events or conditions set forth in Annex A I hereto shall have occurred and or be existing, thenthe ------- Parent or a direct or indirect subsidiary thereof shall commence (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934 (the "Exchange -------- Act")) the Offer as promptly as practicable, not but in no event later than the first five --- business day after execution of this Agreement, the Parent shall issue a public announcement of days following the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for payment any Shares tendered pursuant to the Offer shall be subject to the satisfaction of the conditions set forth in Annex A heretoI, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum ------- Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition in its sole discretion, to increase the price per Share payable in the Offer Offer, or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, Offer (provided that, unless previously approved by without the Company in writingprior, written consent of the Company, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, Offer or which reduces the maximum number of Shares to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex A I ------- hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must ). The Per Share Amount shall be tendered as a condition net to the acceptance seller in cash, subject to reduction only for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment any applicable Federal back-up withholding or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted stock transfer taxes payable by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the partiesseller. The Company agrees that no Shares held by the Company or any of its subsidiaries (as hereinafter defined) will be tendered in pursuant to the Offer. The Purchaser may, at any time, transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but any such transfer or assignment will not relieve the Purchaser of its obligations under the Offer or prejudice the rights of tendering holders of Shares to receive payment for Shares validly tendered and accepted for payment.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mhi Group Inc), Agreement and Plan of Merger (Mhi Group Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A nothing shall have occurred and be existingthat, thenhad the Offer been commenced, not later than would give rise to a right to terminate the first business day Offer pursuant to Article 11 hereof, as promptly as practicable after execution the date of this Agreement, Merger Subsidiary shall commence (within the Parent shall issue a public announcement meaning of Rule 14d-2 under the execution of this Agreement, and not later than 1000 Xxx) the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall Offer and the obligation of Merger Subsidiary to accept for payment and to pay for all any Tender Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority there shall be validly tendered in accordance with the terms of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn Offer, prior to the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn, Tender Shares that, together with the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Tender Shares then directly or indirectly owned by Parent or Purchaser shall be deemed to have been validly tendered and/or Merger Subsidiary, represent a majority of the Voting Shares (the “Minimum Condition”) and not withdrawn pursuant to the Offerother conditions set forth in Annex I hereto. The Purchaser Merger Subsidiary expressly reserves the right to increase waive any of the price per Share payable in conditions to the Offer or and to make any other changes change in the terms and of or conditions of to the Offer; PROVIDED, HOWEVER, that, provided that unless otherwise provided by this Agreement or previously approved by the Company in writingwriting (i) the Minimum Condition may not be waived, (ii) no change may be made which decreases the price per Share payable in the Offer, which that changes the form of consideration to be paid paid, decreases the Offer Price or the number of Tender Shares sought in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which Offer or imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens I or amends any terms of the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition Offer in any manner adverse to the acceptance for payment holders of Tender Shares and payment for shares in (iii) the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, Offer may not be extended except as hereinafter set forth in this Subsection 1.01(aSection 2.01(a). Subject to the terms and conditions of this Agreement, extends the period 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 Offer beyond 45 days 1000 Xxx) after the date of commencement of the Offer, or which otherwise amends the terms of that the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Sharescommenced. Notwithstanding the foregoing, Merger Subsidiary shall extend the Purchaser may, without the consent Offer (1) from time to time for successive periods of no more than 10 Business Days each (or such longer period as may be consented to by the Company, (isuch consent not to be unreasonably withheld) extend the Offer if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares Offer shall not be have been satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, and (2) for any period required by any rule, regulation, interpretation or (ii) extend position of the SEC or the staff thereof applicable to the Offer for a or any period required by Applicable Law. Following expiration of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to timeMerger Subsidiary may, in its sole discretion. The failure by , provide one or more subsequent offering periods (together, the Parent or the Purchaser at any time to exercise any “Subsequent Offering Period”) in accordance with Rule 14d-11 of the foregoing rights shall not be deemed a waiver 1934 Act. Subject to the foregoing, including the requirements of any such right Rule 14d-11, and each such right shall be deemed an ongoing right which may be asserted at any time upon the terms and from time subject to time. Any determination by the Parent or the Purchaser with respect to any conditions of the foregoing conditions Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, promptly after the expiration of the Offer, all Tender Shares (including, without limitation, x) validly tendered and not withdrawn pursuant to the satisfaction of such conditionsOffer and (y) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be validly tendered in the OfferSubsequent Offering Period.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Therma Wave Inc), Agreement and Plan of Merger (Kla Tencor Corp)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Article ARTICLE IX and that none of the events or conditions set forth in Annex A Paragraph 2 of Exhibit B hereto shall exist or have occurred occurred, Purchaser shall, and be existingParent shall cause Purchaser to, then, not promptly (but in no event later than ten Business Days following the first business day after execution date of this Agreement, ) commence (within the Parent shall issue a public announcement meaning of Rule 14d-2 under the execution Securities Exchange Act of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights Agreement"“Exchange Act”)) the Offer to purchase all outstanding Shares, between at the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer Price. The obligations of Purchaser shall to, and of Parent to cause Purchaser to, accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer shall be subject to the only those conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer Exhibit B (the "Minimum Condition"“Offer Conditions”). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any Offer Condition or modify or amend the terms of the Offer, including an increase the price per Share payable in the Offer or to make any other changes in Price, except that, without the terms and conditions prior written consent of the Offer; PROVIDEDCompany, HOWEVER, that, unless previously approved by Purchaser shall not (A) decrease the Company in writing, no Offer Price or change may be made which decreases the price per Share form of the consideration payable in the Offer, which changes (B) decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for sought pursuant to the Offer, which, except (C) amend or waive the Minimum Tender Condition (as hereinafter set forth defined in this Subsection 1.01(aExhibit B), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of D) add to the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Companyon Exhibit B, (iE) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that modify the conditions set forth on Exhibit B in Annex A are for a manner adverse to the sole benefit holders of Shares, (F) extend the expiration of the Parent and Offer except as required or permitted by Section 1.1(a)(ii) or (iii), or (G) make any other change in the Purchaser and may be asserted by the Parent terms or the Purchaser regardless conditions of the circumstances giving rise Offer which is adverse to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser holders of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferShares.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Excel Technology Inc), Agreement and Plan of Merger (Gsi Group Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01 and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have occurred or be existing (unless such event shall have been satisfied or waived by Purchaser), Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), and Purchaser shall commence, the Offer at the Per Share Amount as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the public announcement of Purchaser's intention to commence the Offer. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including (i) the condition (the "Minimum Condition") that a at least the number of Shares representing not less than that, when combined with the Shares already owned by Parent and its direct or indirect subsidiaries and any Shares purchased pursuant to the Stockholders Agreement, constitute a majority of the then outstanding Shares on a fully diluted basis 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 date of the Offer and (ii) the "Minimum Condition")satisfaction or waiver of the other conditions set forth in Annex A hereto. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the price per Share payable in the Offer or Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that (notwithstanding Section 8.04) no change may be made which (A) decreases the price per Per Share payable in the OfferAmount, which changes the form of consideration to be paid in the Offer, which (B) reduces the maximum number of Shares to be purchased in the Offer, which (C) imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens (D) amends or changes the scope terms and conditions of such conditions, which increases the minimum number Offer in any manner materially adverse to the holders of Shares which must be tendered as a condition to the acceptance for payment (other than Parent and payment for shares in the Offer, which its subsidiaries) or (E) changes or waives the Minimum Condition if such waiver would result in less than a majority Condition. The Per Share Amount shall, subject to applicable withholding of Shares being accepted for payment or paid for pursuant taxes, be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends . Subject to the period terms and conditions of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction Minimum Condition), Purchaser shall accept for payment and pay, as promptly as practicable after expiration of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer, for all Shares validly tendered and not withdrawn.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (McFarland Energy Inc), Agreement and Plan of Merger (McFarland Energy Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth Section 8.1 hereof, as promptly as practicable (but in Annex A shall have occurred and be existing, then, not no event later than the first five business day days after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement), Purchaser shall commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securi- ties Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the ------------ Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for paymentPrice, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there being validly tendered and not withdrawn prior to the expiration date of the Offer that number of Shares which represents at least a majority of the Shares outstanding on a fully diluted basis (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights and securities exercisable or convertible into Shares)(the "Minimum ------- Condition") and to the other conditions set forth in Annex I hereto, shall use --------- all reasonable efforts to consummate the Offer in accordance with its terms. The obligations of the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex I hereto. The Offer shall be made by means of an offer to purchase (the "Minimum ConditionOffer to Purchase"). Solely for purposes of determining whether ) subject to the Minimum Condition has been satisfiedand the ----------------- other conditions set forth in Annex I hereto and reflecting, any Shares owned by Parent or where appropriate, the other terms set forth in this Agreement. Purchaser shall be deemed to have been validly tendered not amend or waive the Minimum Condition and shall not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in decrease the Offer or to make any other changes in Price, decrease the terms and conditions number of Shares sought, change the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share form of consideration 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 imposes propose additional conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period amend any other term of the Offer beyond 45 days after in any manner adverse to the date of commencement holders of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, Shares without the written consent of the Company; provided, (i) extend however, that if on the Offer if, at the initial scheduled expiration -------- ------- date of the Offer, any of which shall be twenty (20) business days after the date the Offer is commenced, all conditions to the Purchaser's obligation to purchase Shares shall Offer will not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the satisfied or waived, Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchasermay, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion, extend the expiration date. The failure by Purchaser shall, on the Parent terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law; provided, however, that if, immediately prior to the expiration -------- ------- date of the Offer (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer constitute less than 90% of the outstanding Shares, the Purchaser at any time may extend the Offer for a period not to exercise any of exceed five (5) business days, notwithstanding that all conditions to the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction Offer are satisfied as of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in expiration date of the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sun Coast Industries Inc /De/), Agreement and Plan of Merger (Saffron Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none of the events or conditions set forth in Annex A no event shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent no circumstance shall issue exist which would result in a public announcement failure to satisfy any of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer or events set forth in Annex A hereto (the "Offer Conditions"), Purchaser shall have been satisfied or waived by commence the PurchaserOffer as soon as practicable after the date hereof, and in any event within five business days from the date hereof. The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date satisfaction of the Offer (the "Minimum Condition")Conditions. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right right, in its sole discretion, to increase the price per Share payable in the Offer or to waive any such condition and make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by the Company in writing, (i) Purchaser may not amend or waive the Minimum Condition, (ii) no change may be made which decreases the price per Share payable in the Offer, which changes (iii) there shall be no change to the form of consideration to be paid payable in the OfferOffer (other than by adding consideration), which reduces (iv) there shall be no reduction in the maximum number of Shares to be purchased in the Offer, which imposes conditions or (v) there shall be no imposition of any condition to the Offer in addition to those set forth in Annex A hereto, herein which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of the Shares. Notwithstanding Purchaser covenants and agrees that, subject to the foregoingterms and conditions of this Agreement, the Purchaser may, without the consent of the Company, (i) extend including the Offer ifConditions, it will accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as promptly as reasonably practicable; provided, that (x) at the each scheduled expiration date of the OfferOffer prior to the date 90 days from the date hereof, if any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied or waived, Purchaser shall extend the Offer until such time as the date on which such conditions are then reasonably expected by Purchaser to be satisfied, or (iiy) Purchaser shall extend the Offer for a any period required by any rule, regulation, interpretation or position of not more than 15 the SEC or the staff thereof applicable to the Offer and (z) Purchaser may extend the Offer up to the tenth business days day beyond the latest expiration date that would otherwise be permitted under clause (ix) or (y) of this sentence if, on the sentence. The initial expiration date of such extension, more than two-thirds but less than 90 percent the Offer shall be 20 business days from the commencement of Shares have been validly tendered and not properly withdrawn pursuant the Offer in accordance with applicable law. Subject to the Offer. It foregoing, it is agreed that the conditions set forth in Annex A Offer Conditions are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by Purchaser or Parent not inconsistent with the Purchaserterms hereof) or, unless any such action or inaction by except with respect to the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or Minimum Condition, may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (L 3 Communications Holdings Inc), Agreement and Plan of Merger (Microdyne Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and (1) none of the events or conditions circumstances set forth in paragraphs (a) through (f) of Annex A hereto shall have occurred and be existingexisting (and shall not have been waived by Purchaser) and (2) the Company shall have complied with its obligations under Section 1.2 hereof, thenPurchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, not as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable after the date hereof, but in no event later than seven Business Days after the first business day after execution of this Agreement, the Parent shall issue a initial public announcement of the execution of this Agreement, and not Agreement (which initial public announcement shall occur no later than the fifth business day after the date of the public announcement of the first Business Day following execution and delivery of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only (x) to the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents at least 60% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, rights, convertible or exchangeable securities (including the Convertible Securities) or similar obligations then outstanding, but only to the extent then vested or exercisable or capable of being vested or exercisable on or prior to the Walk-Away Date) (the “Minimum Condition”), and (y) to the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer or and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made without the prior written 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 sought to be purchased in the Offer, which imposes conditions to the Offer in addition to those the conditions set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result Condition, or modifies or amends any of the conditions set forth in less than a majority Annex A hereto or makes other changes in the terms of the Offer that are in any manner adverse to the holders of Shares being accepted or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, Purchaser shall extend the Offer for payment any period required by any rule, regulation or paid for pursuant interpretation of the Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. In addition, which(i) if at the initial scheduled expiration date, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after which shall be 20 Business Days following the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any subsequent scheduled expiration date, any of the conditions set forth to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived, Purchaser shall extend the Offer in Annex Aincrements of not more than 10 Business Days each until such time as such conditions are satisfied or waived; provided that Purchaser shall not be required to extend the Offer beyond the Walk-Away Date (as defined in Section 7.1(b)(iii)); subject, however, to the parties’ respective rights to terminate this Agreement pursuant to Section 7.1, and (ii) in a manner that is materially adverse if the number of Shares validly tendered and not withdrawn pursuant to holders the Offer, when taken together with Shares (if any) then owned by Parent or any of Shares. Notwithstanding its Subsidiaries, constitutes less than 90% of the foregoing, the Purchaser mayShares then outstanding, without the consent of the Company, Purchaser shall (isubject to applicable law) extend have the right to, and at the request of the Company shall, provide for a “subsequent offering period” (as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 Business Days after Purchaser’s acceptance for payment of the Shares then tendered and not withdrawn pursuant to the Offer, in which event Purchaser shall (A) give the required notice of such subsequent offering period and (B) immediately accept for payment and promptly pay for all Shares validly tendered and not withdrawn as of such expiration date. Subject to the terms of the Offer if, at and this Agreement and the scheduled satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Purchaser shall accept for payment and pay for all Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable law. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. It is agreed that The Offer Price shall, subject to any required withholding of Taxes, be net to the seller in cash, upon the terms and subject to the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the partiesOffer. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in to Purchaser pursuant to the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Quixote Corp), Agreement and Plan of Merger (Quixote Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VIII and none of subject to the events or conditions set forth in Annex this Agreement and Exhibit A shall have occurred and be existinghereto, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day as promptly as reasonably practicable after the date of the public announcement of the execution of this Agreementhereof, the Purchaser and in any event within seven (7) Business Days (as defined in Section 9.3(b) hereof) after such date, Merger Sub shall, subject to the provisions of this Agreementand Parent shall cause Merger Sub to, commence a tender offer (within the "Offer") for all meaning of Rule 14d-2 under the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (including the "Company Rights Agreement"), between the Company rules and First Interstate Bank of California, as Rights Agent (collectivelyregulations promulgated thereunder, the "Shares"“Exchange Act”)) at a price of $10.50 per Share, net to the seller in cashOffer. The Purchaser shall obligations of Merger Sub, and of Parent to cause Merger Sub, to accept for payment and pay for all any Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered not validly withdrawn pursuant to the Offer shall be subject to the satisfaction or waiver by Merger Sub of the conditions set forth in Annex Exhibit A heretohereto and the terms and conditions hereof (collectively, including the condition that a number of Shares representing not less than a majority of “Offer Conditions”). Merger Sub may, in its sole discretion, waive any Offer Condition or modify the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date terms or conditions of the Offer consistent with the terms of this Agreement, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the "Minimum Condition"). Solely for purposes Offer Price, (ii) change the form of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share consideration payable in the Offer or to make any (other changes in than by adding consideration), (iii) reduce the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions (iv) waive or change the Minimum Condition or the Termination Condition (as such terms are defined in Exhibit A), (v) add to the Offer Conditions or modify them in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition manner adverse to the acceptance for payment and payment for shares in holders of Shares, (vi) extend the Offer, which waives expiration of the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, Offer except as hereinafter required or permitted by Section 1.1(b) or (vii) modify any term of the Offer set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) Agreement in a manner that is materially adverse to the holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (I Flow Corp /De/), Agreement and Plan of Merger (Kimberly Clark Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VI hereof and so long as none of the events or conditions set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and be existingare continuing, thenas promptly as practicable, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not but in no event later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser Parent and Sub shall, subject to the provisions of this Agreementand Parent shall cause Sub to, commence a tender offer (the "Offer") for all of Offer at the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer Price. The Purchaser shall obligations of Sub to accept for payment and to pay for all Shares which have been validly any shares of 6 Common Stock tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth Tender Offer Conditions, any of which may be waived by Parent or Sub in Annex A heretotheir sole discretion; provided, including the condition however, that a number of Shares representing Sub shall not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether waive the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered (as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth defined in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the prior written consent of the Company, (i) extend the . The Tender Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A Conditions are for the sole benefit of the Parent and the Purchaser Sub and may be asserted by the Parent or the Purchaser and Sub regardless of the circumstances giving rise to any such condition (including any action or inaction by the PurchaserTender Offer Conditions or, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or except as expressly set forth herein, may be waived by the Parent or the Purchaser, and Sub in whole or in part at any time part. Parent and from time Sub expressly reserve the right to time, in its sole discretion. The failure by modify the Parent or the Purchaser at any time to exercise any terms of the foregoing rights Offer, including without limitation to extend the Offer beyond any scheduled expiration date; provided; however, without the prior written consent of the Company, Sub shall not (i) reduce the number of shares of Common Stock to be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered purchased in the Offer, (ii) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other change in the terms of the Offer which is materially adverse to the holders of the Common Stock. Upon the terms and subject to the conditions of the Offer, Sub shall purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn.
Appears in 2 contracts
Samples: 5 Agreement and Plan of Merger (Raymond Corp), Rights Agreement (Lift Acquisition Co Inc)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Article IX VII and that none of the events or conditions set forth in Paragraphs 1(d) — 1(g) of Annex A hereto shall exist or have occurred occurred, Merger Sub shall (and be existingParent shall cause Merger Sub to), then, not as promptly as possible (but in no event later than March 5, 2009) commence (within the first business day after execution meaning of this AgreementRule 14d-2 under the Exchange Act) the Offer to purchase all outstanding Shares, at the Parent shall issue a public announcement Offer Price. The obligations of the execution of this AgreementMerger Sub to, and not later than the fifth business day after the date of the public announcement of the execution of this AgreementParent to cause Merger Sub to, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer shall be subject to the satisfaction or waiver of only those conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"“Offer Conditions”). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any Offer Condition or modify or amend the terms of the Offer, including an increase the price per Share payable in the Offer or to make any other changes in Price, except that, without the terms and conditions prior written consent of the Offer; PROVIDEDCompany, HOWEVER, that, unless previously approved by Merger Sub shall not (A) decrease the Company in writing, no Offer Price or change may be made which decreases the price per Share form of the consideration payable in the Offer, which changes (B) decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for sought pursuant to the Offer, which, except (C) amend or waive the Minimum Tender Condition (as hereinafter set forth defined in this Subsection 1.01(aAnnex A), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of D) add to the conditions set forth in on Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (iE) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that modify the conditions set forth in on Annex A are for in a manner adverse to the sole benefit holders of Shares, (F) extend the expiration of the Parent and Offer except as required or permitted by Section 1A.1(a)(ii) or (iii), or (G) make any other change in the Purchaser and may be asserted by the Parent terms or the Purchaser regardless conditions of the circumstances giving rise Offer which is adverse to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser holders of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferShares.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (AMICAS, Inc.), Agreement and Plan of Merger (Emageon Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01 and none of the events or conditions set forth in Annex ANNEX A hereto shall have occurred and or be existingexisting (unless such event shall have been waived by Acquiror Sub), then, not later than the first business day after execution of this Agreement, the Parent Acquiror shall issue a public announcement of the execution of this Agreementcause Acquiror Sub to commence, and not later than the fifth business day after the date of the public announcement of the execution of this AgreementAcquiror Sub shall commence, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time Per Share Amount as prompt as reasonably practicable after the date hereof, but in no event later than fifteen (15) days after the date hereof. The initial expiration date for the Offer (the "INITIAL OFFER EXPIRATION DATE") shall be no longer than twenty (20) business days following expiration the commencement of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserOffer. The obligation of the Purchaser Acquiror Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including (i) the condition (the "MINIMUM CONDITION") that a at least the number of Shares representing not less than a majority that, when combined with the Shares, if any, already owned by Acquiror and its direct and indirect subsidiaries, constitute fifty-one percent (51%) of the Shares on a fully diluted basis "Voting Shares" shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and (ii) the satisfaction or waiver of the other conditions set forth in ANNEX A hereto and to the terms and conditions of this Agreement. "VOTING SHARES" means the then outstanding Shares, together with all of the then issued and outstanding shares of Class A Preferred Stock, par value $.01 per share (the "Minimum ConditionClass A Preferred Stock")) and all of the Shares issuable under Options (as defined in Section 2.07) that are or may become exercisable between the Tender Offer Acceptance Date (as defined below) and the Effective Time (as defined in Section 2.02) or under any other option, warrant, convertible security or right or other commitment or arrangement in effect on the Tender Offer Acceptance Date. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Acquiror Sub expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that (notwithstanding Section 8.03) no change may be made which (A) decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which (B) reduces the maximum number of Shares to be purchased in the Offer, which (C) imposes conditions to the Offer in addition to those set forth in Annex ANNEX A hereto, which broadens (D) amends or changes the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.terms
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Harris Corp /De/), Agreement and Plan of Merger (Exigent International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none of the events or conditions set forth in Annex ANNEX A shall have occurred or be existing (unless such event shall have been waived by ACo), PHI shall cause ACo to commence, and be existingACo shall commence, then, not later than the first business day after execution Offer at the amount per Share specified in the recitals of this Agreement, Agreement or such greater amount per share paid pursuant to the Parent shall issue a public announcement of Offer (the execution of this Agreement, and not later than the fifth business day "PER SHARE AMOUNT") as promptly as reasonably practicable after the date of hereof, but in no event later than five business days after the public announcement of ACo's intention to commence the execution Offer. The Offer shall expire 20 business days after it is commenced, shall be extended for an aggregate of this Agreementup 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 Purchaser shall, subject Offer may be extended without such consent for up to an aggregate of 30 days from the provisions of this Agreement, commence a tender offer (initial expiration date until the "Offer") for all expiration or termination of the outstanding shares of Common Stockwaiting period, together with if applicable, under the associated rights issued pursuant to HSR Act (as defined in Section 3.5(b)) and (ii) ACo may extend the Rights Agreement dated as of December 5Offer, 1992if, as amended (at the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to time the Offer at the earliest time following expiration would otherwise expire, a 5 day cure period under clause (f) or (g) of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by is in effect, to a date 5 days after the Purchaserend of such 5 day cure period. The obligation of the Purchaser ACo to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including (i) the condition (the "MINIMUM CONDITION") that a at least the number of Shares representing not less than 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 date of the Offer and (ii) the "Minimum Condition"). Solely for purposes satisfaction or waiver of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser other conditions set forth in ANNEX A. ACo expressly reserves the right to change or waive any such condition, to increase the price per Per Share payable in the Offer or Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, that (notwithstanding Section 8.4) no change may be made which (A) decreases the price per Per Share payable in the OfferAmount, which changes the form of consideration to be paid in the Offer, which (B) reduces the maximum number of Shares to be purchased in the Offer, which (C) imposes conditions to the Offer in addition to those set forth in Annex A heretoANNEX A, which broadens (D) changes or waives the scope of such conditionsMinimum Condition, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in (E) extends the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth expressly provided above, (F) provides for a different Per Share Amount in this Subsection 1.01(a), extends the period respect of the Offer beyond 45 days after the date Class A Common Stock than in respect of commencement of the OfferClass B Common Stock, or which otherwise amends (G) waives or changes the terms of the Offer in any manner adverse to the holders of Shares (including any 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 subject to the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any . Subject to the terms and conditions of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction Minimum Condition), ACo shall accept for payment and pay, as promptly as practicable after expiration of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer, for all Shares validly tendered and not withdrawn.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (TPC Corp), Agreement and Plan of Merger (Pacificorp Holdings Inc)
The Offer. (a) Provided that this Agreement shall --------- not have been terminated in accordance with Article IX Section 8.1 and none of the events or conditions set forth in Annex A I hereto shall have occurred and be existingcontinuing, thenas promptly as practicable, not later than the first and, in any event, within seven business day after execution of this Agreement, the Parent shall issue a public announcement days of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreementhereof, the Purchaser shall, subject to shall commence (within the provisions meaning of this Agreement, commence a tender offer (Rule 14d-2 under the "Offer") for all Securities Exchange Act of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act")) the Offer to ------------ purchase for cash all Shares at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, between together with the Company Shares then beneficially owned by Parent or the Purchaser, represents at least a majority of the Shares outstanding on a fully-diluted basis (the "Minimum Condition") and First Interstate Bank (ii) the ----------------- other conditions set forth in Annex I hereto. Subject to the prior satisfaction or waiver by Parent or the Purchaser of California, as Rights Agent (collectivelythe Minimum Condition and the other conditions of the Offer set forth in Annex I hereto, the "Shares") at a price Purchaser shall, in accordance with the terms of $10.50 per Sharethe Offer, net to consummate the seller in cash. The Purchaser shall Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following promptly after expiration of the Offer (subject to the provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Purchaser shall not, at any time, amend or waive the Minimum Condition and shall not decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of Shares sought in the Offer, impose additional conditions to the Offer, or amend any other condition of the Offer in any manner adverse to the holders of the Shares without the prior written consent of the Company, provided, -------- however, that (x) if on the 20th business day following the commencement of the ------- Offer (within the meaning of Rule 14d-2 under the Exchange Act) (the "Initial ------- Expiration Date"), all conditions to the Offer set forth in Annex A hereto shall not have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing--------------- waived, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure , extend the Offer for such period as the Purchaser may determine, and (y) the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the Parent SEC or the Purchaser at staff thereof applicable to the Offer. In addition, subject to the provisions of Section 8.1(b)(iii), if, on the Initial Expiration Date or any time subsequent expiration date (related to exercise an extension of the Offer), (x) the applicable waiting periods under the HSR Act (as defined herein), the ECMR (as defined herein) or any other comparable provisions under any applicable pre-merger notification laws or regulations of foreign jurisdictions have not expired or terminated or (y) any of the foregoing rights events set forth in clause (c) of Annex I shall have occurred and be continuing (and the condition in Annex I with respect thereto shall not have been waived by the Purchaser) or (z) any of the events set forth in clause (a) or (b) of Annex I shall have occurred and be deemed a waiver of any such right continuing and each such right the Purchaser and Parent shall be deemed an ongoing right which may be asserted at any time contesting such event to the extent required by Section 6.4(b) hereof (and from time to time. Any determination by the Parent or the Purchaser condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser), then in each such case, the Purchaser shall extend the Offer. In the event the Minimum Condition is satisfied and the Purchaser purchases Shares pursuant to the Offer, the Purchaser may, in the Purchaser's sole discretion, provide a "subsequent offering period" in accordance with Rule 14d-11 under the Exchange Act. In addition, the Purchaser may increase the Offer Price (but not change any other condition of the foregoing conditions (includingOffer) and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferCompany's consent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lee Sara Corp), Agreement and Plan of Merger (Lee Sara Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1 and none of the events or conditions set forth in Annex Exhibit A shall have occurred and be existingcontinuing, then, not as promptly as practicable but in no event later than ten (10) Business Days after the first business day after execution date of this Agreement, the Parent shall issue a public announcement of cause Sub to commence the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser Sub to, and of Parent to cause Sub to, accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject to the satisfaction of each of the conditions set forth in Annex Exhibit A hereto(any of which may be waived by Sub in its sole discretion), including the condition provided, however, that a number Sub will return or cause to be returned all stock certificates tendered to it by any holders of Shares representing not less than a majority if the Offer expires or terminates without Sub having accepted all of the Shares on a fully diluted basis shall have been shares validly tendered and not withdrawn prior for payment pursuant to the Offer (the time at which such acceptance for payment occurs being referred to herein as the “Offer Closing”). The expiration date of the Offer shall be the 20th Business Day following the commencement of the Offer (the "Minimum Condition"“Expected Expiration Date”). Solely Sub expressly reserves the right to modify the terms of the Offer with at least two (2) business days written notice to the Company, setting forth in full detail any such change, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (ii) modify or add to the conditions set forth in Exhibit A, (iii) except as provided below, extend the Offer, (iv) change the form of consideration payable in the Offer or (v) otherwise amend or modify the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Sub may extend the Offer for purposes any period required by any rule, regulation, interpretation or position of determining whether the Minimum Condition has been satisfied, SEC or the staff thereof applicable to the Offer or for any Shares owned period agreed upon by Parent or Purchaser and the Company. On the terms and subject to the conditions of the Offer and this Agreement, Sub shall be deemed to have been promptly pay for all Shares validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right Offer that Sub becomes obligated to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions purchase pursuant to the Offer in addition to those set forth in Annex A hereto, which broadens as soon as practicable after the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period expiration of the Offer beyond 45 days after the date of commencement of the Offerand, or which otherwise amends the terms during any extension of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to a subsequent offering period under Rule 14d-11 under the Offer. It is agreed that the conditions set forth in Annex A Exchange Act, as soon as practicable after Shares are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offervalidly tendered.
Appears in 2 contracts
Samples: Tender Offer Agreement (Petroleum Development Corp), Tender Offer Agreement (Unioil)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existingVIII, then, then (i) not later than the first business day Business Day (for purposes of this Agreement, such term having the meaning given in Rule 14d-1 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) after execution of this Agreement, Parent and the Parent Company shall issue a public announcement of the execution of this Agreement, and not (ii) Purchaser shall, as promptly as practicable, but in no event later than the fifth business day five Business Days after the date of such public announcement, and Parent shall cause Purchaser to, commence (within the public announcement meaning of Rule 14d-2 under the execution of this AgreementExchange Act), the Purchaser shall, subject Offer to the provisions of this Agreement, commence a tender offer (the "Offer") for purchase all of the issued and outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") Shares at a price per share of $10.50 per Share17.00, net to the seller in cash. The Offer shall be made pursuant to the Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the Company and containing the terms and conditions set forth in this Agreement. The obligation of Purchaser shall to, and of Parent to cause Purchaser to, commence the Offer, conduct and consummate the Offer and accept for payment payment, and pay for all for, any Shares which have been validly properly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex Exhibit A hereto(the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Purchaser in its sole discretion, including provided, however, that Purchaser shall not waive the condition that a Minimum Condition without the prior written consent of the Company). Purchaser expressly reserves the right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, neither Parent nor Purchaser shall (i) reduce the number of Shares representing not less than a majority of subject to the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior Offer, (ii) reduce the Offer Price, (iii) add to or modify the Offer Conditions, (iv) except as provided in the next sentence, change the expiration date of the Offer Offer, (v) change the "Minimum Condition"). Solely for purposes form of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share consideration payable in the Offer or to make (vi) amend, alter, add or waive any other changes in the terms and conditions term of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition any manner adverse to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period holders of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after the commencement date of the Offer, all Offer Conditions have not been satisfied or waived, Purchaser may, without the consent of the Company, (i) and at the request of the Company shall, from time to time, extend the Offer if, at the scheduled expiration date of the Offer, any and Purchaser may, without the consent of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfiedCompany, or (ii) extend the Offer for a any period required by any rule, regulation, interpretation or position of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause Securities and Exchange Commission (ithe "SEC") of this sentence if, on or the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant SEC staff applicable to the Offer. It is agreed that Subject only to the conditions set forth in Annex A are for Exhibit A, Purchaser shall, and Parent shall cause Purchaser to, as soon as practicable after the sole benefit expiration of the Parent Offer, accept for payment, and the pay for all Shares validly tendered and not withdrawn that Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise becomes obligated to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time accept for payment pursuant to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mh Millennium Holdings LLC), Agreement and Plan of Merger (Herbalife International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VI hereof and so long as none of the events or conditions set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and be existingare continuing, thenas promptly as practicable, not but in no event later than the first business day seventh Business Day after execution the date of this Agreement, the Parent shall issue a public announcement of the execution of this Agreementcause Purchaser to, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to commence (within the provisions meaning of this Agreement, commence a tender offer (Rule 14d-2 promulgated under the "Offer") for all Securities Exchange Act of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between ) the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer. The obligations of Purchaser shall to accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth Tender Offer Conditions, any of which may be waived by Purchaser; provided, that the Minimum Condition (as defined in Annex A hereto, including ) may not be waived by Purchaser without the condition that a number of Shares representing not less than a majority prior written consent of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")Company. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in modify the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERthat without the consent of the Company, that, unless previously approved by Purchaser shall not (i) reduce the Company in writing, no change may be made 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 sought to be purchased in the Offer, which imposes conditions (ii) reduce the Offer Price, (iii) add to the Tender Offer Conditions, (iv) modify the Tender Offer Conditions or any other term or condition of the Offer in addition a manner that is adverse to those the holders of Common Stock, (v) change the form of consideration payable in the Offer or (vi) except as provided in the last two sentences of this subsection (a) or as required by law, extend the Offer beyond any scheduled expiration date. Purchaser covenants and agrees that, subject to the terms and conditions of this Agreement, including, but not limited to, the Tender Offer Conditions and the last sentence of this Section 1.01(a), unless the Company otherwise consents in writing it will accept for payment and pay for the Shares as soon as it is permitted to do so under applicable law (but in any event, in the case of accepting for payment, within one Business Day after the Offer terminates). Purchaser agrees that if it is unable to consummate the Offer on the initial scheduled expiration date due to the failure of the Tender Offer Conditions set forth in Annex A heretoto be satisfied or waived, Purchaser shall, unless this Agreement has been terminated in accordance with its terms, extend the Offer and set a subsequent scheduled expiration date, and shall continue to so extend the Offer and set subsequent scheduled expiration dates, until the termination of this Agreement in accordance with its terms; provided, that any such extended expiration date shall not be later than the earlier of (x) ten Business Days following the previously scheduled expiration date and (y) the date on which broadens the scope of such conditions, which increases the minimum number of Shares which must Purchaser reasonably believes that all Tender Offer Conditions will be tendered as a condition satisfied or waived. Notwithstanding anything in this subsection (a) to the acceptance for payment and payment for shares in contrary, Purchaser may extend the Offer, which without the Company's consent, on one or more occasions, for any reason, up to a maximum of three Business Days in the aggregate, notwithstanding the prior satisfaction of the Tender Offer Conditions so long as Purchaser irrevocably waives the Minimum Condition if such waiver would result in less than a majority continued satisfaction of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Tender Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferConditions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Travel Services International Inc), Agreement and Plan of Merger (Travel Services International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreementas promptly as practicable, and not but in no event later than the fifth ten (10) business day days after the date of the public announcement of the execution of this Agreement, Purchaser shall cause Acquisition Sub to commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Exchange Act")) the Offer to purchase for cash all of the issued and outstanding shares of Company Common Stock, and the associated rights (the "Rights") issued pursuant to the Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 18.35 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant , without interest (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserPrice"). The obligation of the Purchaser Acquisition Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject (i) to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there being validly tendered and not withdrawn prior to the expiration date of the Offer that number of Shares which, together with any Shares beneficially owned by Purchaser or Acquisition Sub, represents at least a majority of the Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" meaning, as of any date, the number of Shares outstanding plus all Shares the Company is then required to issue pursuant to obligations outstanding at that date under employee stock option or other benefit plans, outstanding warrants, outstanding options of any kind, convertible securities, or otherwise (to the extent such options, warrants, convertible securities or other rights are vested or exercisable) (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied), any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant (ii) to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse B hereto. Acquisition Sub shall, on the terms and subject to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent prior satisfaction or waiver of the Company, (i) extend the Offer if, at the scheduled expiration date conditions of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final Minimum Condition, accept for payment and binding on the partiespay for Shares tendered as soon as practicable after it is legally permitted to do so under applicable law. The Company agrees that no Shares held Offer shall promptly be made by means of an offer to purchase (the Company will be tendered "Offer to Purchase") containing the terms set forth in this Agreement, the Offer.Minimum Condition and the other conditions set forth in Annex B hereto. Without the written consent of the Company, Acquisition
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cameron Ashley Building Products Inc), Agreement and Plan of Merger (Guardian Fiberglass Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX pursuant to Section 9.1 and that none of the events or conditions set forth in paragraphs (a) through (e) of Annex A I shall have occurred and be existingexist, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day as promptly as practicable after the date of this Agreement (and in any event no later than six Business Days after the public announcement of the execution date of this Agreement), the Purchaser Merger Sub shall, subject to the provisions of this Agreementand Parent shall cause Merger Sub to, commence a tender offer (within the "meaning of Rule 14d-2 under the Exchange Act) the Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall Offer and the obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Company Shares tendered pursuant to 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 scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, together with the Company Shares then directly or indirectly owned by Parent, represents a majority of all Fully Diluted Shares as of immediately prior to the expiration of the Offer (as it may be extended pursuant to the terms of this Section 1.1(a)) (the “Minimum Condition”) and to the other conditions set forth in Annex A heretoI (collectively, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the “Offer (the "Minimum Condition"Conditions”). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Merger Sub expressly reserves the right (but shall not be obligated) to increase waive any of the price per Share payable in conditions to the Offer or and to make any other changes change in the terms and of or conditions of to the Offer; PROVIDED, HOWEVER, that, provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, no Merger Sub may not (i) waive the Minimum Condition, unless the Modified Minimum Condition is satisfied and Parent has made the Cash Election Request, (ii) change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid pursuant to the Offer, decrease the Offer Price or the number of Company Shares sought in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes impose conditions to the Offer in addition to those set forth in Annex A heretoI, which broadens or otherwise amend or modify the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition Offer Conditions to the acceptance for payment and payment for shares Offer in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant any manner materially adverse to the Offerholders of Company Shares, which, or (iii) extend the expiration date of the Offer except as hereinafter set forth in this Subsection 1.01(aSection 1.1(a). Subject to the terms and conditions of this Agreement, extends the period of the Offer beyond 45 days shall initially expire at midnight, New York City time, on the date that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date of commencement of the Offer, or which otherwise amends the terms of that the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Sharescommenced. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) Merger Sub shall extend the Offer on one or more occasions for periods determined by Merger Sub of up to 20 Business Days per extension if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares Offer shall not be have been satisfied until such time as or waived if in the reasonable determination of Parent such conditions are capable of being satisfied on or prior to the Outside Date; provided that (A) if all the Offer Conditions other than the Minimum Condition are satisfied or waived as of the first scheduled expiration of the initial offering period, then, unless (1) Merger Sub has previously commenced a Notes Offer or (2) the Modified Minimum Condition is satisfied, Merger Sub has waived the Minimum Condition and Parent has made the Cash Election Request, then in the case of either subclause (1) or (ii2) of this clause (A), Merger Sub shall be obligated to extend the Offer for an additional 10 Business Days, (B) if all the Offer Conditions other than the Minimum Condition are satisfied or waived as of the scheduled or extended expiration of the Offer, then Merger Sub shall not be obligated to extend the Offer unless required by applicable Law (but shall be entitled to extend the Offer), and (C) if, at any scheduled or extended expiration of the Offer, (1) the Offer Conditions set forth in paragraphs (a) and (b) of Annex I have not been satisfied (other than by reason of a period judgment, injunction or order that is not final or remains subject to appeal) or waived by Purchaser, (2) the Offer Condition set forth in paragraphs (c) or (d) of Annex I have not more than 15 business days beyond been satisfied or waived by Purchaser and, in the latest expiration date that would otherwise be permitted under case of clause (i2), the breach or failure to perform or comply that has caused such non-satisfaction is not capable of being cured within 20 days after receipt by the Company of notice of such breach or failure from Purchaser or, if capable of being cured within such period (it being understood that a willful failure to comply with Section 7.5 shall be deemed incapable of being cured), has not been cured within such period or (3) the Offer Condition set forth in paragraph (e) of Annex I has not been satisfied or waived, then, in the case of any of subclause (1), (2) and (3) of this sentence Clause (C), Merger Sub shall not be obligated (but shall be entitled) to extend the Offer; provided, further, that (x) Merger Sub shall not, and shall not be required to, extend the Offer beyond the Outside Date or (y) Merger Sub shall not be required (but shall be entitled) to extend the Offer at any time that it is permitted to terminate this Agreement pursuant to ARTICLE IX. Following expiration of the Offer, Merger Sub may, in its sole discretion, provide one or more subsequent offering periods (each, a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act, if, on as of the date commencement of each such extensionperiod, more than two-thirds but less than 90 percent of Shares there shall not have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed Offer and any prior Subsequent Offering Period that number of Company Shares necessary to permit the conditions set forth in Annex A are for the sole benefit Merger to be effected without a meeting of stockholders of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless Company, in accordance with Section 253 of the circumstances giving rise DGCL. Subject to any such condition (the foregoing, including any action the requirements of Rule 14d-11, and upon the terms and subject to the satisfaction or inaction waiver by Merger Sub of the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser Offer Conditions as of any scheduled or extended expiration of its covenants under this Agreementthe Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, (A) or may be waived by as promptly as practicable after the Parent or final expiration of the PurchaserOffer, all Company Shares validly tendered and not withdrawn pursuant to the Offer and (B) as promptly as practicable, all Company Shares validly tendered in whole or in part at any time and from time to time, in its sole discretionSubsequent Offering Period. The failure by Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Parent Offer or the Purchaser at validly tendered in any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right Subsequent Offering Period shall be deemed an ongoing right which may be asserted at paid net to the holder thereof in cash, subject to reduction for any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerapplicable withholding Taxes.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (United Industrial Corp /De/), Agreement and Plan of Merger (Textron Inc)
The Offer. (a) Provided that this Agreement The Company shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaseras promptly as practicable. The obligation of the Purchaser Company to commence the Offer and to accept for payment, purchase and to pay for Shares any shares of WorldPort Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any satisfaction of the conditions set forth in Annex A) in a manner that is materially adverse to holders EXHIBIT D (the "OFFER CONDITIONS"). As soon as reasonably practicable following execution of Shares. Notwithstanding the foregoingthis Agreement, the Purchaser mayCompany shall file with the SEC a Tender Offer Statement and a Rule 13e-3 Transaction Statement on Schedule TO, without including all exhibits thereto (together with all amendments and supplements thereto, the consent "SCHEDULE TO") with respect to the Offer, the Merger and the other transactions contemplated hereby. The Schedule TO shall contain or incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and forms of the Companyrelated letter of transmittal and any related documents (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements or amendments thereto, collectively, the "OFFER DOCUMENTS"). Heico and JOHCM shall each use their commercially reasonable efforts to ensure that (i) extend the Offer if, at Documents shall comply in all material respects with the scheduled expiration date requirements of the OfferExchange Act, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or and (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date filed with the SEC and on the date first published, sent or given to WorldPort's stockholders, the Offer Documents shall not contain any untrue statement of such extensiona material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, more than two-thirds but less than 90 percent in light of Shares have been validly tendered and the circumstances under which they were made, not properly withdrawn pursuant misleading. If at any time prior to the Offer. It is agreed Effective Time, Heico or JOHCM discovers any information relating to either party, or any of their respective Affiliates, officers or directors, that the conditions should be set forth in Annex A are for an amendment or supplement to the sole benefit schedule to, so that the document will not include any misstatement of a material fact or omit to state any material fact necessary to make the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless statements therein, in light of the circumstances giving rise to under which they were made, not misleading, then the party that discovers any such condition (including any action misleading information shall promptly notify the other parties hereto and an appropriate amendment or inaction by supplement describing the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 information shall be deemed an ongoing right which may be asserted at any time and from time promptly filed with the SEC and, to time. Any determination the extent required by law or regulation, disseminated to the Parent or the Purchaser with respect to any shareholders of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferWorldPort.
Appears in 2 contracts
Samples: Joint Venture and Securityholders Agreement (Heisley Michael E Et Al), Joint Venture and Securityholders Agreement (Worldport Communications Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject and Parent shall cause Purchaser to the provisions of this Agreementuse commercially reasonable efforts to, commence a tender offer within five (5) Business Days from the "Offer"date hereof (and in any event Purchaser shall, and Parent shall cause Purchaser to, commence within ten (10) for all Business Days from the date hereof) the Offer within the applicable rules and regulations of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashSEC. The obligations of Purchaser shall accept for payment to, and pay for all Shares which have been validly tendered and not withdrawn pursuant of Parent to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the cause Purchaser to to, accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares that, together with Shares already owned by Parent and Purchaser or their respective Affiliates, would represent at least a majority of the Fully Diluted Shares (the “Minimum Tender Condition”) and (ii) the satisfaction, or waiver by Parent or Purchaser, of the other conditions and requirements set forth in Exhibit A, as such conditions may be modified in accordance with the express terms of this Agreement. The initial expiration date of the Offer shall be midnight (New York City time) on the "Minimum Condition"twentieth (20th) Business Day following commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) of the Exchange Act). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right in its sole discretion to increase waive, in whole or in part, any condition to the price per Share Offer or modify the terms of the Offer, except that, without the written consent of the Company, Purchaser shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) waive or amend the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the Company or the holders of the Shares, (v) except as otherwise provided in this Section 2.1(a), extend the Offer or change the form of consideration payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to (vi) otherwise amend the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition any manner adverse to the acceptance for payment and payment for shares in Company or the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period holders of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends Shares. The parties hereto agree to cooperate in good faith to modify the terms of the Offer (including as and if required by the SEC to the extent such modifications do not materially alter the Transactions or require any of increase to the conditions set forth in Annex A) in a manner that is materially adverse to holders of SharesOffer Price. Notwithstanding any provision of this Agreement to the foregoingcontrary, the Purchaser may, without the consent of the Company, (i) shall extend the Offer iffor the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; provided, however, that Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, extend the Offer beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with its terms, if at the otherwise scheduled expiration date of the Offer, Offer any of the conditions condition to the Purchaser's obligation Offer is not satisfied, Purchaser shall, and Parent shall cause Purchaser to purchase Shares extend the Offer for one (1) or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be agreed to by the Company); provided, however, that Purchaser shall not be satisfied until such time required to, and Parent shall not be required to cause Purchaser to, extend the Offer beyond the Outside Date. On the terms and subject to the conditions of the Offer and this Agreement, Purchaser shall, and Parent shall cause Purchaser to, accept and pay for (subject to any withholding of Tax pursuant to Section 3.2(e)) all Shares validly tendered and not validly withdrawn pursuant to the Offer that Purchaser becomes obligated to purchase pursuant to the Offer promptly after the expiration of the Offer (as such conditions are satisfiedit may be extended and re-extended in accordance with this Section 2.1(a)). Purchaser expressly reserves the right to, or (ii) in its sole discretion, following the Acceptance Time, extend the Offer for a period of not “subsequent offering period” (and one or more than 15 business days beyond extensions thereof) in accordance with Rule 14d-11 under the latest expiration date that would otherwise be permitted under clause (i) of this sentence ifExchange Act, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the PurchaserOffer Documents may, in whole or in part at any time and from time to time, in its Purchaser’s sole discretion, provide for such a reservation of right. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditionsNothing contained in this Section 2.1(a) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered affect any termination rights in the OfferArticle VIII.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (EQT Corp), Agreement and Plan of Merger (Trans Energy Inc)
The Offer. (a) Provided that Subject to this Agreement shall not have having been terminated in accordance with Article IX the provisions of Section 8.1 hereof, Purchaser shall, and none of the events or conditions set forth Parent shall cause Purchaser to, as promptly as practicable, but in Annex A shall have occurred and be existing, then, not no event later than five Business Days (as defined in the first business day after execution of this Distribution Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after ) from the date of the public announcement of the execution terms of this Agreement, commence an offer to purchase for cash (as it may be amended in accordance with the terms of this Agreement, the Purchaser shall"OFFER") all of the Company's outstanding shares of common stock, par value $.25 per share, together with all preferred stock purchase rights associated therewith (the "SHARES"), subject to the provisions of this Agreementconditions set forth in Exhibit B attached hereto, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of not less than $10.50 38.00 per Share, net to the seller in cash. The Subject only to the conditions set forth in Exhibit B hereto and the express provisions of the Distribution Agreement, the Purchaser shall, and Parent shall cause Purchaser to, (i) accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the terms of the Offer shall be subject to as promptly as practicable following the expiration date of the Offer, and (ii) extend the period of time the Offer is open until the first Business Day following the date on which the conditions set forth in Annex A heretoclause (i)(A) and clause (i)(B) of Exhibit B hereto are satisfied or waived in accordance with the provisions thereof; provided, including that the condition Purchaser shall be permitted, but shall not be obligated, to extend the period of time the Offer is open beyond June 30, 1996. Subject to the preceding sentence of this Section 1.1, neither Purchaser nor Parent will extend the expiration date of the Offer beyond the twentieth Business Day following commencement thereof unless one or more of the conditions set forth in Exhibit B hereto shall not be satisfied or unless Parent reasonably determines that a such extension is necessary to comply with any legal or regulatory requirements relating to the Offer or the Spin-Off. Purchaser expressly reserves the right to amend the terms or conditions of the Offer; provided, that without the consent of the Company, no amendment may be made which (i) decreases the price per Share or changes the form of consideration payable in the Offer, (ii) decreases the number of Shares representing not less than a majority sought, or (iii) imposes additional conditions to the Offer or amends any other term of the Offer in any manner materially adverse to the holders of Shares. Upon the terms and subject to the conditions of the Offer, the Purchaser will accept for payment and purchase, as soon as permitted under the terms of the Offer, all Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer. (b) Parent will not, nor will it permit any of its affiliates to, tender into the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares beneficially owned by it; provided, that Shares held beneficially or of record by any plan, program or arrangement sponsored or maintained for the benefit of employees of Parent or any of its Subsidiaries shall not be deemed to be held by Parent or Purchaser an affiliate thereof regardless of whether Parent has, directly or indirectly, the power to vote or control the disposition of such Shares. The Company will not, nor will it permit any of its Subsidiaries (other than Retained Subsidiaries (as defined in Section 4.1 hereof)) to, tender into the Offer any Shares beneficially owned by it; provided, that Shares held beneficially or of record by any plan, program or arrangement sponsored or maintained for the benefit of employees of the Company or any of its Subsidiaries shall not be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved be held by the Company regardless of whether the Company has, directly or indirectly, the power to vote or control the disposition of such Shares. (c) Notwithstanding anything to the contrary contained in writingthis Agreement, no change may Parent and Purchaser shall not be made which decreases the price per Share payable in the Offer, which changes the form of consideration required to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to commence the Offer in addition to those set forth in Annex A hereto, which broadens any foreign country where the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends in Parent's reasonable opinion, would violate the terms applicable Law (as defined in the Distribution Agreement) of such jurisdiction. (d) On the date of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date commencement of the Offer, any of Purchaser shall file with the conditions to Securities and Exchange Commission (the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii"SEC") extend the a Tender Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, Statement on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser Schedule 14D-1 with respect to any the Offer which will contain an offer to purchase and form of the foregoing conditions related letter of transmittal (including, without limitationtogether with any supplements or amendments thereto, the satisfaction of such conditions) shall be final and binding on the parties"OFFER DOCUMENTS"). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing of such Offer Documents with the SEC. Purchaser agrees that no Shares held by to provide the Company will be tendered and its counsel in writing with any comments Purchaser and its counsel may receive from the Offer.SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. 2
Appears in 2 contracts
Samples: Conformed Copy Agreement and Plan of Merger (Loral Corp /Ny/), Conformed Copy Agreement and Plan of Merger (Lockheed Martin Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VIII, as promptly as reasonably practicable after the date of this Agreement, Sub shall, and none Parent shall cause Sub to, commence the Offer within the meaning of the events applicable rules and regulations of the Securities and Exchange Commission (the “SEC”) to purchase all Shares for the Per Share Mixed Election Consideration or the Per Share Cash Election Consideration, as applicable, as herein provided. The obligations of Sub to, and of Parent to cause Sub to, accept for exchange, and pay for, any Shares tendered pursuant to the Offer (and not validly withdrawn) are subject only to the satisfaction or waiver of each of the conditions set forth in Annex Exhibit A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement(such conditions, the “Offer Conditions”). Subject to the prior satisfaction, or waiver by Parent or Sub, of the Offer Conditions and the occurrence of the Acceptance Time, Sub shall (and Parent shall issue a public announcement of cause Sub to) consummate the execution of this Agreement, Offer in accordance with its terms and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment exchange and pay for exchange all Shares which have been validly tendered and not withdrawn pursuant to the Offer at promptly in accordance with Rule 14e-1(c) under the earliest time following expiration of the Offer that all conditions Exchange Act after Sub is legally permitted to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaserdo so under applicable law. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the initial expiration date of the Offer shall be midnight (New York City time) on the "Minimum Condition"20th business day (as defined in Rule 14d-1 under the Exchange Act, “business day”) following the commencement of the Offer (determined using Rule 14d-1(g)(3) of the SEC) (such date, the “Initial Expiration Date”, and such date and any subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, each an “Expiration Date”). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in In the Offer, which changes the form of consideration to be paid each Share accepted by Sub in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends accordance with the terms of the Offer (including any of shall, subject to the conditions provisions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the CompanySection 1.01(c), (id) extend and (e), be exchanged for the Offer ifright to receive from Sub, at the scheduled expiration date election of the Offer, any holder of such Share pursuant to Section 1.01(b): (X) the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, Per Share Mixed Election Consideration; or (iiY) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence ifPer Share Cash Election Consideration, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaserplus, in whole or the case of (X), cash in part at any time and from time to time, lieu of fractional Shares of Parent Common Stock in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser accordance with respect to any of the foregoing conditions (includingSection 1.01(d), without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerinterest.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hi/Fn Inc), Agreement and Plan of Merger (Exar Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this AgreementSection 8.1, and not later than subject to compliance in all material respects by the fifth Company with its covenants in this Section 1.1 and Section 1.2, as promptly as practicable, and in any event within ten (10) business day days after the date hereof, Purchaser shall commence (within the meaning of Rule 14d-2 under the public announcement Securities Exchange Act of 1934, as amended, and the execution of this Agreement, rules and regulations promulgated thereunder (the Purchaser shall“Exchange Act”)) the Offer to purchase for cash all Shares at the Offer Price, subject to (i) there being validly tendered in the provisions Offer (in the aggregate) and not withdrawn prior to the expiration of this Agreementthe Offer that number of Shares which, commence together with the Shares then beneficially owned by Parent or its Subsidiaries, represents at least a tender offer (majority of the "Offer") for all Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as capital stock of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank entitled to vote in the election of Californiadirectors or upon the approval of this Agreement, as Rights Agent in each case on a fully diluted basis (collectively, the "Shares"“Minimum Condition”) at a price and (ii) the satisfaction or waiver of $10.50 per Share, net the other conditions and requirements set forth in Annex I. Subject to the seller prior satisfaction of the Minimum Condition and the prior satisfaction or waiver by Parent or Purchaser of the other conditions and requirements set forth in cash. The Annex I, Purchaser shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer as soon as practicable after Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex A hereto, including the condition that a number I. The Offer shall be made by means of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior an offer to the expiration date of the Offer purchase (the "Minimum Condition"). Solely for purposes of determining whether “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition has been satisfiedand the other conditions and requirements set forth in Annex I. Neither Parent nor Purchaser may waive the Minimum Condition, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in decrease the Offer or to make any other changes in Price, change the terms and conditions form of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share consideration payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces reduce the maximum number of Shares to be purchased in the Offer, which imposes Offer or impose conditions to the Offer in addition to those set forth in Annex A hereto, which broadens I without the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period prior written consent of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of SharesCompany. Notwithstanding the foregoing, (A) if, as of any scheduled expiration date of the Offer, all conditions to the Offer shall not have been satisfied or waived, Purchaser may, without from time to time, in its sole discretion, extend the consent expiration date of the CompanyOffer for such period (not to exceed ten (10) business days on any single occasion) as Purchaser may determine, to a date that is no later than March 31, 2006, or such later date which is no later than the third (3rd) business day following the latest of (1) the date on which Parent’s and Purchaser’s rights of negotiation expire under Section 8.1(f), (i2) any Recommendation Deadline and (3) the twentieth (20th) business day following receipt by Parent or Purchaser of a notice pursuant to Section 8.1(b)(ii)(B); provided, that the failure of the Offer to be consummated, at the time of such extension, shall not (other than in circumstances described in clause (3)) be a result of Parent or Purchaser having failed to comply in any material respect with its covenants or agreements contained in this Agreement and (B) if applicable, Purchaser shall extend the Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act of not less than three (3) or more than ten (10) business days, if necessary, in order to meet the objective that there be validly tendered, in accordance with the terms of the Offer, prior to the expiration of such subsequent offering period, and not withdrawn a number of Shares which, together with Shares then beneficially owned by Parent, Purchaser and/or any other wholly-owned Subsidiary of Parent represents at least 90% of the then outstanding Shares on a fully diluted basis and (C) if, at the as of any scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfiedevents described in paragraphs (c), or (iid) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.or
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Koch Industries Inc), Agreement and Plan of Merger (Georgia Pacific Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none no event shall have occurred and no circumstance shall exist which would result in a failure to satisfy any of the conditions or events or conditions set forth in Annex A shall have occurred hereto (the "Offer Conditions"), Purchaser shall, as soon as reasonably practicable after the date hereof (and be existing, then, not later than in any event within five business days from the first business day after execution date of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementhereof), commence a tender an offer (the "Offer") to purchase for cash all of the issued and outstanding shares of Common Stock, together with the associated rights issued pursuant par value $.14 2/3 per share (referred to the Rights Agreement dated herein as of December 5, 1992, as amended (either the "Shares" or "Company Rights AgreementCommon Stock"), between of the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 80.00 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date satisfaction or waiver by Purchaser of the Offer (the "Minimum Condition")Conditions. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right right, in its sole discretion, to increase waive any such condition (other than the price per Share payable Minimum Condition as defined in the Offer or to Conditions) and make any other changes in the terms and or conditions of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the OfferOffer (other than by adding consideration), which reduces the maximum number of Shares to be purchased in the Offer, which imposes modify or amend the Offer Conditions or otherwise amend the Offer in a manner adverse to holders of the Shares. Purchaser covenants and agrees that, subject to the terms and conditions of this Agreement, including but not limited to the Offer in addition to those set forth in Annex A heretoConditions, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance it will accept for payment and payment pay for shares Shares as soon as it is permitted to do so under applicable law; provided that, Purchaser shall have the right, in the Offerits sole discretion, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of extend the Offer beyond 45 days after for up to five business days, notwithstanding the date of commencement prior satisfaction of the Offer, or which otherwise amends in order to attempt to satisfy the terms requirements of Section 253 of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the OfferDGCL. It is agreed that the conditions set forth in Annex A Offer Conditions are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including except for any action or inaction by the Purchaser, unless any such action Purchaser or inaction by the Purchaser would constitute Parent constituting a breach by the Purchaser of any of its covenants under this Agreement) or or, except with respect to the Minimum Condition, may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure Purchaser further agrees that the Holding Co. Merger and the Woodbank Merger will not be closed until the Offer Conditions are otherwise satisfied or waived by Purchaser, and immediately prior to the purchase of the Shares by Purchaser pursuant to the Offer. Purchaser agrees that, so long as this Agreement is in effect and all of the Offer Conditions are satisfied other than the conditions to the Offer set forth in clause (h) of Annex A and the Minimum Condition, at the request of the Company the Purchaser, at its option, shall extend the Offer until the earlier of (1) such time as such conditions are satisfied or waived, and (2) the date chosen by the Parent or the Purchaser at any time to exercise any of the foregoing rights Company which shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right later than (x) the Outside Date (as defined herein), (y) the earliest date on which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company reasonably believes such condition will be tendered satisfied; provided, that the Company may request further extensions up until the Outside Date if the Offer Conditions set forth in clause (h) and the OfferMinimum Condition are still the only Offer Condition not satisfied unless this Agreement has been terminated pursuant to the provisions of Article VIII.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dillard Department Stores Inc), Agreement and Plan of Merger (Mercantile Stores Co Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth 11, then UTCSub shall, as promptly as practicable, (but in Annex A shall have occurred and be existing, then, not no event later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day five Business Days after the date of the public announcement of the execution of this Agreement), and UTC shall cause UTCSub to, commence (within the Purchaser shallmeaning of Rule 14d-2 under the Exchange Act) an offer to purchase all of the outstanding ICP Shares for a price of $11.75 in cash for each ICP Share, which offer shall be made in accordance with applicable Securities Laws and be subject only to the provisions of this Agreement, commence a tender offer Offer Conditions (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5which definition shall include any permitted amendments to, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectivelyor extensions of, the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer). The Purchaser Offer shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn be made pursuant to the Offer at Documents and shall contain the earliest time following expiration of the Offer that all terms and conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaserthis Agreement. The obligation of UTCSub to, and of UTC to cause UTCSub to, commence the Purchaser to Offer, conduct and consummate the Offer and accept for payment, purchase and pay for for, any ICP Shares tendered (and not properly withdrawn) pursuant to the Offer shall be subject only to the conditions set forth Offer Conditions (any of which may be waived in Annex A heretowhole or in part by UTCSub in its sole discretion). UTCSub expressly reserves the right, including subject to compliance with applicable Securities Laws, to modify the condition that a terms of the Offer, except that, without the express written consent of ICP, UTCSub shall not (i) reduce the number of ICP Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offer. The Purchaser expressly reserves , (ii) reduce the right Offer price, (iii) add to increase or modify the price per Share Offer Conditions, (iv) except as provided in the next sentence, change the Expiry Time, (v) change the form of consideration payable in the Offer or to make (vi) amend, alter, add or waive any other changes in the terms and conditions term of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A heretoany manner that is, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offeropinion of ICP, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offeracting reasonably, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to the holders of the ICP Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (iA) extend the Offer if, at the if on any scheduled expiration date of the Offer, any which shall initially be the Initial Expiry Time, all of the conditions to Offer Conditions have not been satisfied or waived, UTCSub shall, and UTC shall cause UTCSub to, unless in the Purchaser's obligation to purchase Shares shall reasonable judgment of UTC all of the Offer Conditions cannot be satisfied until such time as such conditions are satisfiedor waived on or prior to December 15, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if1999, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure extend the Expiry Time for such period of time as is necessary to satisfy or fulfill such conditions, (B) UTCSub may extend the Offer for any period required by the Parent any rule, regulation, interpretation or the Purchaser at any time to exercise position of any of the foregoing rights shall not be deemed a waiver of Securities Authorities applicable to the Offer, or to permit ICP to cure any such right and each such right shall be deemed an ongoing right which may be asserted at any misrepresentation, breach or non-performance during the time and from time period referred to time. Any determination by in the Parent or the Purchaser with respect proviso to any clause (d) of the foregoing conditions Offer Conditions, and (includingC) UTCSub may extend the Offer for up to ten (10) Business Days (but not beyond December 15, without limitation1999) if there have been validly tendered (and not properly withdrawn) prior to the expiration of the Offer such number of ICP Shares that would constitute at least 80%, but less than 90%, of the satisfaction issued and outstanding ICP Shares as of such conditions) the date of determination. Subject only to the Offer Conditions, UTCSub shall, and UTC shall be final and binding on cause UTCSub to, pay, as soon as practicable after the parties. The Company agrees that no Shares held by the Company will be tendered in expiration of the Offer, for all ICP Shares validly tendered (and not properly withdrawn).
Appears in 2 contracts
Samples: Acquisition Agreement (United Technologies Corp /De/), Acquisition Agreement (International Comfort Products Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none of the events or conditions set forth in Annex A Article 6 shall have occurred and be existing, then, not later than as promptly as practicable after the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not date hereof (but in no event later than the fifth business day after the date of the public announcement of the execution terms of this Agreement, Acquisition shall commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net Offer. The Offer will be made pursuant to the seller Offer Documents (as defined below) containing terms and conditions set forth in cashthis Agreement. The Purchaser Acquisition shall accept for payment payment, purchase and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto Article 6 shall have been satisfied or waived by the PurchaserAcquisition. The obligation of the Purchaser Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than at least a majority of the issued and outstanding Shares on a fully diluted basis shall have been be validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")) and the other conditions set forth in Article 6. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser Acquisition expressly reserves the right to waive any such condition (other than the Minimum Condition) to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, Offer (provided that, unless previously approved by the Company in writing, no change may be made which decreases the price per Per Share payable Amount, which reduces the number of Shares to be purchased 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, Article 6 or which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a amends or changes any term or condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after in a manner adverse to the date holders of commencement Shares). The Per Share Amount shall be paid net to the seller in cash, less any required withholding of taxes, upon the terms and subject to such conditions of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
Appears in 2 contracts
Samples: Plan and Agreement of Merger (Prism Financial Corp), Plan and Agreement of Merger (Prism Financial Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as reasonably practicable (and in accordance with Article IX and none of any event within fifteen (15) Business Days after the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution date of this Agreement, subject to compliance by the Parent shall issue a public announcement Company of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreementits obligations pursuant to Section 1.2), the Purchaser shallshall (and Parent shall cause Purchaser to) commence, subject within the meaning of Rule 14d-2 under the Exchange Act, the Offer to the provisions of this Agreement, commence a tender offer (the "Offer") for purchase all of the outstanding shares of Common Stock, together with Shares for cash at the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer Price. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration consummation of the Offer that all conditions to Offer, and the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer (and any obligation of Parent to cause the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer), shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the conditions set forth in Annex A heretoExpiration Date that number of Shares which, together with the number of Shares (if any) then owned by Parent or any of its wholly-owned direct or indirect Subsidiaries, including the condition that Purchaser, represents at least a number majority of the Shares representing not then outstanding and no less than a majority of the voting power of the shares of capital stock of the Company then outstanding and entitled to vote upon the adoption of this Agreement and approval of the Merger (excluding from the number of tendered Shares, but not from the number of outstanding Shares, Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior pursuant to guaranteed delivery procedures (to the expiration date extent such procedures are permitted by the Purchaser) that have not yet been delivered in settlement or satisfaction of such guarantee) (collectively, the “Minimum Condition”) and (ii) the satisfaction, or waiver by the Purchaser (to the extent permitted in Annex I), of each of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders I. For the purposes of Shares. Notwithstanding determining the foregoingMinimum Condition, the Purchaser may“number of Shares then outstanding” and “number of shares of capital stock of the Company outstanding” shall mean, without the consent of the Companyduplication, (i) extend the aggregate number of Shares then-outstanding, plus (ii) the aggregate number Shares subject to then-outstanding vested Company RSUs and vested Company PSUs that have not yet settled into Shares that are then-outstanding, plus (iii) the aggregate number of Shares that the Company is required to issue upon conversion, settlement or exercise of all then-outstanding Company Options for which the Company has received notices of exercise or conversion and payment of the applicable aggregate exercise price prior to the expiration of the Offer ifand for which the Company has not yet issued Shares. Other than the Minimum Condition, at the scheduled expiration date of the Offerand subject to Annex I, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in this Section 1.1 and clause (c) of the initial paragraph of Annex A I are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition conditions (including except if any breach of the Merger Agreement or other action or inaction by Parent or the Purchaser, unless Purchaser has been a proximate cause of or proximately resulted in the failure or the non-satisfaction of any such action or inaction by condition) and, subject to the Purchaser would constitute a breach by the Purchaser other terms of any of its covenants under this Agreement) or Agreement (including Annex I), may be waived by the Parent or the Purchaser, in its sole discretion, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aerohive Networks, Inc), Agreement and Plan of Merger (Extreme Networks Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set --------- forth in Annex A hereto shall have been satisfied occurred or waived by be continuing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than 10 business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including (i) the condition (the "Minimum Condition") that a at least the number of Shares representing not less than that when added to Shares already owned by Siemens Aktiengesellschaft and its direct and indirect wholly owned subsidiaries shall 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, excluding, however, any securities not convertible or exercisable on or prior to July 31, 2001 or which have an effective conversion or exercise price in excess of the Per Share Amount immediately prior to the expiration of the Offer) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and (ii) the "Minimum Condition")satisfaction or waiver of each of the other conditions set forth in Annex A hereto. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Per Share payable in the Offer or Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made which decreases the price per Per Share payable in Amount, waives the OfferMinimum Condition, 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 Offer or imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase accept for payment Shares shall not be satisfied until such time as such conditions are satisfiedor waived, or (ii) extend the Offer for a any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable --- to the Offer, or (iii) extend the Offer for an aggregate period of not more than 15 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer totals less than 90% of the outstanding Shares on a fully diluted basis. In addition, if, on the initial scheduled expiration date of such extensionthe Offer, more than twothe only conditions remaining unsatisfied are the failure of the waiting period under the Xxxx-thirds but less than 90 percent Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), the German Competition Act or any other applicable ------- foreign antitrust law, to have expired or been terminated, then, Purchaser shall extend the Offer from time to time until July 31, 2001. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Purchaser shall pay for all Shares have been validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. It is agreed that Notwithstanding the conditions set forth in Annex A are for immediately preceding sentence and subject to the sole benefit applicable rules of the Parent SEC and the Purchaser terms and may be asserted by the Parent or the Purchaser regardless conditions of the circumstances giving rise Offer, Purchaser expressly reserves the right to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, delay payment for Shares in order to comply in whole or in part at any time and from time with applicable laws. Any such delay shall be effected in compliance with Rule 14e- 1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ------------ If the payment equal to time, the Per Share Amount in its sole discretion. The failure by cash (the Parent or "Merger ------ Consideration") is to be made to a person other than the Purchaser at any time to exercise any person in whose name ------------- the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the foregoing rights shall not be deemed a waiver of any such right and each such right Company, it shall be deemed an ongoing right which may a condition of payment that the certificate so surrendered shall be asserted at any time endorsed properly or otherwise be in proper form for transfer and from time to time. Any determination that the person requesting such payment shall have paid all transfer and other taxes required by the Parent or the Purchaser with respect to any reason of the foregoing conditions (includingpayment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, without limitation, or shall have established to the satisfaction of Purchaser that such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offertaxes either have been paid or are not applicable.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Siemens Aktiengesellschaft/Adr), Agreement and Plan of Merger (Siemens Aktiengesellschaft/Adr)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX its terms and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied occurred or waived by be continuing, Parent shall cause Merger Sub to, and Merger Sub shall, commence the PurchaserOffer as promptly as reasonably practicable after the date hereof, but in no event later than five (5) Business Days after the date hereof. The obligation of the Purchaser Merger Sub to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including (i) the condition that a at least the number of Shares representing not less than that when added to Shares already owned by Parent and its direct and indirect wholly owned Subsidiaries, if any, shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of any outstanding options or warrants which are vested as of the date hereof or are capable of vesting during the ninety (90) day period following the consummation of the Offer and have an exercise price of $10.00 per Share or less) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")) and (ii) there shall not have occurred or be continuing any of the conditions set forth in Annex A hereto. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Per Share payable in the Offer or Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made by Parent without the prior written consent of the Company which (A) decreases the price per Per Share Amount or changes the form of consideration payable in the Offer, which changes (B) waives the form of consideration to be paid in the OfferMinimum Condition, which (C) reduces the maximum number of Shares to be purchased in the Offer, which (D) imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment hereto or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period (E) amends any term of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including in any of the conditions set forth in Annex A) in a other manner that is materially adverse to the holders of the Shares. Notwithstanding the foregoing, the Purchaser Merger Sub may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be twenty (20) Business Days following the commencement of the Offer, if, at the scheduled expiration date of the Offer, any of the conditions to the PurchaserMerger Sub's obligation to purchase accept for payment Shares shall not be satisfied until such time as such conditions are satisfiedor waived, or (ii) extend the Offer for a any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 15 business days ten (10) Business Days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence sentence, if, on the date as of such extensiondate, more than two-thirds all of the conditions to Merger Sub's obligations to accept for payment Shares are satisfied or waived, but less than 90 percent the number of Shares have been validly tendered and not properly withdrawn pursuant to the Offer totals less than ninety percent (90%) of the issued and outstanding Shares on a fully diluted basis. The Per Share Amount shall, subject to any applicable withholding of Taxes, be net to the sellers of the Shares in cash, upon the terms and subject to the conditions of the Offer. It is agreed that Subject to the terms and conditions set forth in Annex A are for the sole benefit of the Offer and this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered and not withdrawn as promptly as practicable following satisfaction of the Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the Purchaser terms and may be asserted by the Parent or the Purchaser regardless conditions of the circumstances giving rise Offer, Merger Sub expressly reserves the right to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, delay payment for Shares in order to comply in whole or in part at any time and from time with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If the payment equal to time, the Per Share Amount in its sole discretion. The failure by cash is to be made to a Person other than the Parent or Person in whose name the Purchaser at any time to exercise any surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the foregoing rights shall not be deemed a waiver of any such right and each such right Company, it shall be deemed an ongoing right which may a condition of payment that the certificate so surrendered shall be asserted at any time endorsed properly or otherwise be in proper form for transfer and from time to time. Any determination that the Person requesting such payment shall have paid all transfer and other Taxes required by the Parent or the Purchaser with respect to any reason of the foregoing conditions (includingpayment of such amount to a Person other than the registered holder of the certificate surrendered, without limitation, or shall have established to the satisfaction of Merger Sub that such conditions) shall be final and binding on the partiesTaxes either have been paid or are not applicable. The Company agrees that no Shares held If this Agreement is terminated by Parent or by the Company will be tendered in Company, Parent shall cause Merger Sub to, and Merger Sub shall, terminate promptly the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cable & Wireless PLC), Agreement and Plan of Merger (Digital Island Inc)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01 and that none of the events or conditions set forth in Annex clause (iii) of Exhibit A hereto shall have occurred and or be existing, thenPurchaser shall, not and Parent shall cause Purchaser to, as promptly as practicable (but in no event later than the first seven business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of days following the public announcement of the execution terms of this Agreement, ) commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act")) an offer to purchase all outstanding shares of common stock of the Company, between the Company and First Interstate Bank of California, as Rights Agent par value $.01 per share (collectively, the "Shares") ), at a price (such price, or any higher price as may be paid in the Offer, the "Offer Price") of $10.50 49.00 per Share, net to the seller in cashcash (the "Offer"). The obligation of Purchaser shall to consummate the Offer and to accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer thereto shall be subject to the only those conditions set forth in Annex Exhibit A heretohereto (the "Offer Conditions"), including any of which may be waived by Purchaser in its sole discretion; provided that the condition that a number of Shares representing Minimum Tender Condition (as defined in Exhibit A) may not less than a majority be waived without the prior written consent of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the Company. The initial expiration date of the Offer shall be the twentieth business day following the commencement of the Offer (determined in accordance with Rule 14d-1(e)(6) under the "Minimum Condition"Exchange Act). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in modify the terms and conditions of the Offer; PROVIDED, HOWEVER, except that, unless previously approved by without the Company in writingprior written consent of the Company, no Purchaser shall not (A) decrease or change may be made which decreases the price per Share form of the consideration payable in the Offer, which changes (B) decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for sought pursuant to the Offer, which(C) impose additional conditions to the Offer, except as hereinafter set forth (D) make any other change in this Subsection 1.01(a), extends the period terms or conditions of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to the holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is it being agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted neither a waiver by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreementthe Offer Conditions (other than the Minimum Tender Condition) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by , nor the Parent or the Purchaser at any time to exercise any extension of the foregoing rights shall not be deemed a waiver of any such right and each such right Offer as permitted below, shall be deemed an ongoing right which may to be asserted at adverse to the holders of Shares, or (E) except as provided below, extend the Offer beyond any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerscheduled Expiration Date.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Deutsche Bank Ag\), Agreement and Plan of Merger (Deutsche Bank Ag\)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1, Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the fifth (5th) Business Day from and including the date of initial public announcement of this Agreement). The obligation of Sub to commence the Offer shall be subject only to the condition that none of the events or conditions set forth in clauses (v)(a) or (v)(b) of Annex A hereto shall have occurred and be existing, then, continuing (and not later than the first business day after execution of this Agreement, the waived by Parent shall issue a public announcement of the execution of this Agreementor Sub in their sole discretion), and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser Sub to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser A. Sub expressly reserves the right to increase waive any conditions to the price per Share payable Offer or change the terms of the Offer except that, without the prior written consent of the Company, Sub may not waive the condition in clause (i) of Annex A (the “Minimum Condition”) or the condition in clause (ii) or (iii) of Annex A, and no change in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which (i) decreases the price per Share Offer Price payable in the Offer, which (ii) changes the form of consideration to be paid in the Offer, which (iii) reduces the maximum number of Shares to be purchased in the OfferOffer or the minimum number of Shares contemplated by the Minimum Condition, which (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto, hereto or which broadens otherwise modifies the scope conditions set forth in such Annex A or (v) amends any other term of such conditions, which increases the minimum number of Shares which must be tendered as Offer in a condition manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, purchase and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment and payment for shares on the Acceptance Date, the “Acceptance Time”) or (in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority case of Shares being accepted tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof without interest, subject to any withholding of Taxes required by applicable Law or in accordance with Sections 3.2(i) and (j). Parent shall provide or cause to be provided to Sub on a timely basis funds sufficient to purchase and pay for payment or paid any and all Shares that Sub becomes obligated to accept for payment, purchase and pay for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Johnson & Johnson), Agreement and Plan of Merger (Omrix Biopharmaceuticals, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX its terms and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex ANNEX A hereto shall have been satisfied occurred or waived by be continuing, Parent shall cause Merger Sub to, and Merger Sub shall, commence (within the Purchasermeaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof. The obligation of the Purchaser Merger Sub to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including (i) the condition that a at least the number of Shares representing not less than that when added to Shares already owned by Parent and its direct and indirect wholly owned Subsidiaries, if any, and without giving effect to the exercise of the option pursuant to the Stock Option Agreement, shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of any outstanding Options or Warrants which are vested as of the date hereof or are capable of vesting during the ninety (90) day period following the consummation of the Offer but excluding any such holders of Options or Warrants who have agreed in writing to accept the cash payments described in Section 2.7 hereof upon termination of their Options or Warrants as described in Section 2.7 hereof) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")) and (ii) there shall not have occurred or be continuing any of the conditions set forth in ANNEX A hereto. Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Per Share payable in the Offer or Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made by Parent without the prior written consent of the Company which (A) decreases the price per Per Share Amount or changes the form of consideration payable in the Offer, which changes (B) waives the form of consideration to be paid in the OfferMinimum Condition, which (C) reduces the maximum number of Shares to be purchased in the Offer, which (D) imposes conditions to the Offer in addition to those set forth in Annex ANNEX A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment hereto or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period (E) amends any term of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including in any of the conditions set forth in Annex A) in a other manner that is materially adverse to the holders of Sharesthe Shares or the likelihood of the consummation of the Merger. Notwithstanding the foregoing, the Purchaser Merger Sub may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be twenty (20) Business Days following the commencement of the Offer, if, at the scheduled expiration date of the Offer, any of the conditions to the PurchaserMerger Sub's obligation to purchase accept for payment Shares shall not be satisfied until such time as such conditions are satisfiedor waived, or (ii) extend the Offer for a any period required by any rule, regulation, interpretation or position of the SEC, or the staff thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 15 business days ten (10) Business Days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence sentence, if, on the date as of such extensiondate, more than two-thirds all of the conditions (including the Minimum Condition) to Merger Sub's obligations to accept for payment Shares are satisfied or waived, but less than 90 percent the number of Shares have been validly tendered and not properly withdrawn pursuant to the Offer totals less than ninety percent (90%) of the issued and outstanding Shares on a fully diluted basis. Following expiration of the Offer, the Purchaser may, in its sole discretion, provide a subsequent offering period (a "Subsequent Offering Period") in accordance with Rule 14d-11 under the Exchange Act. The Per Share Amount shall, subject to any applicable withholding of Taxes, be $1.00 net to the sellers of the Shares in cash, upon the terms and subject to the conditions of the Offer. It is agreed that Subject to the terms and conditions set forth in Annex A are of the Offer and this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered and not withdrawn as promptly as practicable following satisfaction of the Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Merger Sub expressly reserves the right to delay payment for Shares for the sole benefit purpose of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, complying in whole or in part at any time and from time with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. If the payment equal to time, the Per Share Amount in its sole discretion. The failure by cash is to be made to a Person other than the Parent or Person in whose name the Purchaser at any time to exercise any surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the foregoing rights shall not be deemed a waiver of any such right and each such right Company, it shall be deemed an ongoing right which may a condition of payment that the certificate so surrendered shall be asserted at any time endorsed properly or otherwise be in proper form for transfer and from time to time. Any determination that the Person requesting such payment shall have paid all transfer and other Taxes required by the Parent or the Purchaser with respect to any reason of the foregoing conditions (includingpayment of such amount to a Person other than the registered holder of the certificate surrendered, without limitation, or shall have established to the satisfaction of Merger Sub that such conditions) shall be final and binding on the partiesTaxes either have been paid or are not applicable. The Company agrees that no Shares held If this Agreement is terminated by Parent or by the Company will be tendered in Company, Parent shall cause Merger Sub to, and Merger Sub shall, terminate promptly the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (E-Medsoft Com), Agreement and Plan of Merger and Reorganization (E-Medsoft Com)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existingMerger Subsidiary shall, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day as promptly as practicable after the date of hereof, but in no event later than five business days following the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions terms of this Agreement, commence a tender an offer (the "OfferOFFER") for to purchase all of the outstanding shares of Common Stockcommon stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended par value $.001 per share (the "Company Rights AgreementSHARES"), between including the associated Rights (defined in Section 4.1(c)), of the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 29.25 per ShareShare (including the associated Right), net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority there shall be validly tendered in accordance with the terms of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the "FULLY DILUTED SHARES") (the "Minimum ConditionMINIMUM CONDITION"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered ) and not withdrawn pursuant to the Offerother conditions set forth in Annex I hereto. The Purchaser Parent and Merger Subsidiary expressly reserves reserve the right to increase waive the price per Share payable in conditions to the Offer or and to make any other changes change in the terms and or conditions of the Offer; PROVIDED, HOWEVER, PROVIDED that, unless previously approved by without the Company in writingwritten consent of the Company, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid paid, decreases the price per Share or the number of Shares sought in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A heretoI, which broadens changes or waives the scope of such conditionsMinimum Condition, which increases extends the minimum number of Shares which must be tendered Offer (except as a set forth in the following sentence), or makes any other change to any condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter Offer set forth in this Subsection 1.01(a), extends Annex I which is adverse to the period holders of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends Shares. Subject to the terms of the Offer in this Agreement and the satisfaction (including any or waiver to the extent permitted by this Agreement) of the conditions to the Offer, Merger Subsidiary 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 and shall pay for all such Shares promptly after acceptance; PROVIDED that Merger Subsidiary may (or, if the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Companyclauses (a), (b), (c), (d) and (i) of Annex I exist, shall) extend the Offer if, at the scheduled expiration date of the Offer, Offer or any extension thereof any of the conditions to the Purchaser's obligation to purchase Shares Offer shall not be satisfied have been satisfied, until such time as such conditions are satisfiedsatisfied or waived, or (ii) and Merger Subsidiary may extend the Offer for a further period of time of not more than 15 20 business days beyond to meet the latest expiration date that would otherwise be permitted under clause objective (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and which is not properly withdrawn pursuant a condition to the Offer. It is agreed ) that there be validly tendered, in accordance with the conditions set forth in Annex A are for the sole benefit terms of the Offer, prior to the expiration date of the Offer (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless Merger Subsidiary, represents at least 90% of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the OfferFully Diluted Shares.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Platinum Technology International Inc), Agreement and Plan of Merger (Computer Associates International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 hereof and none of the events or conditions set forth in Annex A I shall have occurred and be existing, then, not as promptly as practicable (but in no event later than the first five business day days after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement), Purchaser shall commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between ) the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the ------------ Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserPrice. The obligation obligations of the Purchaser to accept for payment, purchase payment and to pay for any Shares validly tendered pursuant on or prior to the expiration of the Offer and not withdrawn shall be subject only to the conditions set forth in Annex I hereto. The Offer shall be made by means of an offer to purchase (the "Offer to -------- Purchase") subject to the conditions set forth in Annex A I hereto. Except as -------- provided in Section 1.1(d), including Purchaser shall not, without the condition that a number of Shares representing not less than a majority prior written consent of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of Company, (i) decrease the Offer (Price or change the "Minimum Condition"). Solely for purposes form of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share consideration payable in the Offer, which changes (ii) decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares sought to be purchased in the OfferOffer (except as otherwise set forth in Section 1.1(d) hereof), which imposes (iii) impose conditions to the Offer in addition to those set forth in Annex A heretoI, which broadens (iv) amend any condition of the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter Offer set forth in this Subsection 1.01(a)Annex I, extends (v) extend the period of initial expiration date (the Offer beyond 45 days after the date of commencement "Initial Expiration Date") of the Offer, ----------------------- except as required by law and except that in the event that any condition to the Offer is not satisfied or which otherwise amends waived on the terms Initial Expiration Date, the Purchaser shall, and shall continue to, extend the Offer from time to time until a date not later than March 26, 1998 (it being understood that the Purchaser may determine the interim expiration dates of any extension of the Offer during such extension period), or (including vi) amend any other term of the conditions set forth Offer in Annex A) in a any manner that is materially adverse to any holders of the Shares. Notwithstanding ; provided, however that in the foregoing, event that -------- ------- any condition to the Purchaser may, without Offer is not satisfied on a date following the consent of Initial Expiration Date on which the CompanyOffer is scheduled to expire, (i) extend the Offer ifPurchaser may, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by , extend the Parent or expiration date of the Offer until a date not later than July 31, 1998 and (ii) at the written request of the Company delivered no later than March 26, 1998, the Purchaser at any shall, and shall continue to, extend the Offer from time to exercise any time for the period commencing on the date of the foregoing rights notice referred to above until a date not later than July 31, 1998 (it being understood that the Purchaser may determine the interim expiration dates of any extension of the Offer during such extension period); provided, further, that in the event that the Purchaser extends the expiration -------- ------- date of the Offer in accordance with such request: (A) Annex I shall be deemed to be amended to provide an additional condition that the Purchaser shall not be deemed a required to accept for payment or pay for any tendered Shares unless and until Parent and the Purchaser shall have obtained sufficient financing (the "Substitute Financing") in replacement, if necessary, of the Financing (as -------------------- defined below) in order to permit Parent and the Purchaser to acquire all of the Shares in the Offer and the Merger and to pay the anticipated expenses in connection therewith, (B) the condition set forth in paragraph (h) of Annex I shall be amended and replaced with the condition set forth in clause (A) above, (C) from and after such time Parent shall not be subject to Section 6.12 and (D) Parent shall use all commercially reasonable efforts to secure the Substitute Financing prior to July 31, 1998 and to provide funds to the Purchaser to permit it to perform its obligations hereunder and in the Offer (provided that Parent shall not be required to obtain Substitute Financing on economic terms materially less favorable to it than the Financing). Purchaser shall, on the terms and subject to the prior satisfaction or waiver of any such right the conditions of the Offer, accept for payment and each such right pay for Shares tendered as soon as it is legally permitted to do so under applicable law. Parent shall provide or cause to be deemed an ongoing right which may be asserted at any time and from time provided to time. Any determination by the Parent or the Purchaser with respect on a timely basis the funds necessary to accept for payment, and pay for, any of Shares that the foregoing conditions (includingPurchaser becomes obligated to accept for payment, without limitationand pay for, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in pursuant to the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rose Acquisition Corp), Agreement and Plan of Merger (State of the Art Inc /Ca)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX V hereof and none of the events or conditions set forth in Annex A I hereto (the “Tender Offer Conditions”) shall have occurred or be existing and be existingnot have been waived by Purchaser, thenPurchaser shall (i) within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, not as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”) and within the meaning of The Securities Regulation Code of the Philippines (including the rules and regulation promulgated thereunder, the “SRC”), as promptly as reasonably practicable (but in any event no later than the first business day after execution Final Launch Date (as defined below)), commence (such date on which the offer commences in the United States, the “Launch Date”) an offer to purchase (or, if required by applicable Law commence separate offers in the United States and the Philippines to purchase) all outstanding Common Shares and ADSs at the Offer Price, (ii) as promptly as reasonably practicable (on or prior to the Launch Date), file a Tender Offer Statement on Schedule TO and all other necessary documents with the United States Securities and Exchange Commission (the “SEC”) and a Form 19-1 with the Philippine Securities and Exchange Commission (the “PSEC”) and make all announcements, deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act and under Rule 19 of the SRC, in each case in connection with the Offer (together, such documents as may be amended and supplemented, the “Offer Documents”) and (iii) use reasonable efforts to consummate the Offer, subject to the terms and conditions thereof. Company shall cooperate and give all reasonable assistance to Purchaser to enable Purchaser to comply with the foregoing provisions, including promptly and accurately providing to Purchaser any and all information and documents reasonably requested by Purchaser for this purpose. The obligation of Purchaser to accept for payment or pay for any Shares tendered pursuant to the Offer will be subject only to the satisfaction or waiver by Purchaser of the conditions set forth in Annex I hereto. Company agrees that no Shares held by Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the Offer. For the purpose of this Agreement, the Parent “Final Launch Date” shall issue a be the date that is twenty-five (25) business days following public announcement of this Agreement; provided; however, if at 11:59 pm New York City time on the execution twenty-fifth business day following public announcement of this Agreement, either the SEC or PSEC has not granted in writing exemptive relief from compliance with, and not later than taken a “no action” position with respect to, (with respect to the fifth business day after SEC) the rules promulgated under the Exchange Act and (with respect to the PSEC) the rules and regulations promulgated under the PCC and SRC, in connection with the Offer, as described in Schedule 1.1(a) attached hereto (the “No Action Relief”), but Purchaser (i) has submitted to the SEC or PSEC a draft or final request for such relief and (ii) is using all reasonable efforts to pursue the No Action Relief, such time period shall automatically extend until the date of that is five (5) business days after Purchaser has received the public announcement of No Action Relief; provided further that if, on what would otherwise be the execution of this AgreementFinal Launch Date, Purchaser is still preparing or finalizing the Offer Documents and/or making or finalizing preparations to commence the Offer and is using all reasonable efforts to do so, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer Final Launch Date shall automatically extend for an additional ten (the "Offer"10) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaserbusiness days. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered commence the Offer as provided in this Section 1.1(a) is subject to Purchaser not being entitled to terminate this Agreement pursuant to Section 5.4(d). Following the date hereof, the parties hereto shall use their reasonable efforts to commence the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except promptly as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offerreasonably practicable.
Appears in 2 contracts
Samples: Acquisition Agreement (eTelecare Global Solutions, Inc.), Acquisition Agreement (Ayala Corp)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Article IX and none a failure to satisfy any of the events or conditions set forth in Annex A shall have occurred and be existingI hereto, thenMerger Subsidiary shall, not as promptly as practicable after the date hereof, but in no event later than the first business day after Business Day (as defined in Rule 14b-1(c)(6) of the Securities and Exchange Act of 1934, as amended (the "Exchange Act")), following the execution of this Agreement, the Parent shall issue a public announcement of the execution of this AgreementAgreement and as promptly as practicable, and not later than the fifth business day after the date of but in any event within five Business Days following the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions terms of this Agreement, commence a tender an offer (the "Offer") for to purchase all of the outstanding shares of Common Stockcommon stock, par value $.01 per share together with the associated attached rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended purchase shares (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") ), of the Company at a price of $10.50 12.50 per Share, net to the seller in cash. The Purchaser Such Offer shall accept remain open for payment and pay for all Shares which have been validly tendered and a period not withdrawn pursuant to exceed 30 Business Days (the "Offer at the earliest time following expiration of the Offer that all conditions Period") subject to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaserextension as provided below. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority there shall be validly tendered in accordance with the terms of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority (the "Minimum Condition"). Solely for purposes ) of determining whether the Minimum Condition has been satisfiedtotal number of outstanding Shares, any assuming the exercise of all outstanding options, rights and convertible securities (if any) (other than options to be canceled pursuant to Section 2.5 hereof, and Shares owned by Parent or Purchaser shall to be deemed to have been validly tendered and not withdrawn issued pursuant to the OfferStock Option Agreement defined herein) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") and to the other conditions set forth in Annex I hereto. The Purchaser Parent and Merger Subsidiary expressly reserves reserve the right to increase waive the price per Share payable in conditions to the Offer or and to make any other changes change in the terms and or conditions of the Offer; PROVIDED, HOWEVERprovided however, that, unless previously approved by without the Company in writingwritten consent of the Company, no change may be made which decreases the price per Share payable (i) except as provided in the next sentence, extends the Offer, which ; (ii) changes the form of consideration to be paid for the Shares, (iii) decreases the price per Share or the number of Shares sought in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which (iv) imposes conditions to the Offer in addition to those set forth in Annex A heretoI, which broadens (v) changes or waives the scope of such conditionsMinimum Condition, which increases the minimum number of Shares which must be tendered as a or (vi) makes any other change to any condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that I which is materially adverse to the holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, Merger Subsidiary may (i) extend the Offer if, at the scheduled expiration date of the Offer, any Period until all of the conditions to the PurchaserMerger Subsidiary's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfiedor waived, including, without limitation, any period required (A) by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; or (B) pursuant to the HSR Act, defined below, shall have terminated, or (C) to obtain necessary approval of each state insurance regulatory agency required for consummation of the Offer, (ii) extend the Offer Period for a period of not more than 15 business days 10 Business Days beyond the latest expiration date that would otherwise thereof, as such may be permitted under clause extended pursuant to subparagraph (i) hereof, (iii) extend the Offer Period for an additional period of this sentence if, not more than 10 Business Days beyond that permitted by subparagraphs (i) and (ii) hereof if on the date of such extension, more than two-thirds but less than 90 ninety percent (90%) of the Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer, and (iv) extend the Offer for any reason for a period of not more than five Business Days beyond the latest Expiration Date that would be otherwise permitted under clauses (i), (ii), or (iii) of this sentence. It is agreed that Subject to the conditions set forth in Annex A are for the sole benefit terms of the Parent Offer and this Agreement and the Purchaser and may be asserted satisfaction (or waiver to the extent permitted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any conditions of the foregoing conditions (includingOffer, without limitation, the satisfaction of such conditions) Merger Subsidiary shall be final accept for payment all Shares validly tendered and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.not
Appears in 2 contracts
Samples: Agreement and Plan of Merger (HCC Insurance Holdings Inc/De/), Agreement and Plan of Merger (Centris Group Inc)
The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Article IX VIII and that none of the events or conditions set forth in Annex Paragraph (2) of Exhibit A hereto shall exist or have occurred and be existingcontinuing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject and Parent shall cause Purchaser to, use reasonable best efforts to commence (within the provisions meaning of this Agreement, commence a tender offer (Rule 14d-2 under the "Offer") for all Securities Exchange Act of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights Agreement"“Exchange Act”)) prior to the fifth (5th) Business Day after the date hereof (but in no event later than the tenth (10th) Business Day after the date hereof, between provided that the Company shall be prepared to disseminate to its shareholders its Schedule 14d-9 and First Interstate Bank of California, as Rights Agent (collectively, Schedule 14f-1 within such time period) the "Shares") Offer to purchase all outstanding Shares at a price of $10.50 per Share, net to the seller in cashOffer Price. The obligations of Purchaser shall (and of Parent to cause Purchaser) to accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A hereto (the “Offer Conditions”). The initial expiration date (the “Initial Expiration Date”) of the Offer shall be the twentieth (20th) Business Day following (and including the day of) the commencement of the Offer. Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any Offer Condition or modify or amend the terms of the Offer, except that, without the prior written consent of the Company, Purchaser shall not decrease the Offer Price or change the form of the consideration payable in the Offer, or, except pursuant to Section 1.1(b), (A) decrease the number of Shares sought pursuant to the Offer, (B) amend or waive the Minimum Tender Condition (as defined in Exhibit A), (C) add to the conditions set forth on Exhibit A, (D) modify the conditions set forth on Exhibit A in Annex A hereto, including a manner that is adverse to the condition that a number holders of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to or (E) extend the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, required or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex Apermitted by Section 1.1(a)(ii) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offeriii).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Glaxosmithkline PLC), Agreement and Plan of Merger (Genelabs Technologies Inc /Ca)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none Subject to the provisions of the events or conditions set forth Agreement, as promptly as practicable but in Annex A shall have occurred and be existing, then, not no event later than the first five business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day days after the date of the public announcement by Parent and the Company of the execution and delivery of this Agreement, the Purchaser Sub shall, subject to the provisions of this Agreementand Parent shall cause Sub to, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of Sub to, and of Parent to cause Sub to, commence the Purchaser to Offer and accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex Exhibit A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum ConditionOffer Conditions"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed ) and to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Agreement. Sub expressly reserves the right to modify the terms of the Offer; PROVIDED, HOWEVER, except that, unless previously approved by without the Company consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) add to the Offer Conditions, (iv) except as provided in writingthe next sentence, no extend the Offer, (v) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes the form (vi) amend any other term of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions or add any new term to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition any manner materially adverse to the acceptance for payment and payment for shares in holders of the Offer, which waives Shares or (vii) waive the Minimum Condition if such waiver would result (as defined in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(aExhibit A), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser Sub may, without the consent of the Company, (iA) Subject to Section 9.01(b)(i)(Y), extend the Offer ifOffer, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (iithe "SEC") or the staff thereof applicable to the Offer, (C) extend the Offer from time to time until two business days after the expiration of the last to expire of the waiting period under the HSR Act (as defined in Section 4.05 below) and Section 24 a, Subsection 2, sentence 1 of the German Law Against Restraints of Trade (the "German Competition Act") and (D) extend the Offer for a period of not more than to exceed 15 business days beyond days, notwithstanding that all conditions to the latest Offer are satisfied as of such expiration date that would otherwise be permitted under clause (i) of this sentence the Offer, if, on immediately prior to such expiration date (as it may be extended), the date of such extension, more than two-thirds but Shares tendered and not withdrawn pursuant to the Offer equal less than 90 percent 90% of the outstanding Shares have been (on a fully diluted basis). Subject to the terms and conditions of the Offer and the Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not properly withdrawn pursuant to the Offer. It is agreed Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the conditions set forth in Annex A are for Offer as soon as practicable after the sole benefit expiration of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Peak Technologies Group Inc), Kirkwood Acquisition Corp
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX IX, and none of the events or conditions set forth in paragraphs (a), (b), (c) (to the extent performance is required theretofore), (e) and (f) of Annex A I hereto shall have occurred and be existingcontinuing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, as promptly as practicable and not later than the fifth business day in any event within ten (10) Business Days after the date hereof, MergerSub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase all outstanding Company Common Shares at the Offer Price, and shall, upon commencement of the public announcement of Offer but after affording the execution of this AgreementCompany reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the Purchaser shall“Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall use its commercially reasonable efforts to consummate the Offer, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant terms and conditions thereof. Subject to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions this Agreement and to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such satisfaction or waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) I hereto (the “Tender Offer Conditions”), MergerSub shall, as soon as possible after the expiration of the Offer (or, if applicable, the expiration of the “initial offering period”), accept for payment, and pay for (after giving effect to any required withholding Tax), all Company Common Shares validly tendered pursuant to the Offer and not withdrawn (the first date of acceptance for payment, the “Acceptance Date”). MergerSub and the Company each agree promptly to correct any information provided by it for use in a manner the Offer Documents if and to the extent that is materially adverse it shall have become false or misleading in any material respect and MergerSub shall take all steps necessary to cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Sharesshares, in each case as and to the extent required by applicable Federal securities laws. Notwithstanding MergerSub shall provide the foregoingCompany with (in writing, if written), and shall consult with the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the OfferCompany regarding, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, comment (written or (iioral) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted received by MergerSub or its counsel from the Parent SEC or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the 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 deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser staff with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the partiesOffer Documents as promptly as practicable after receipt thereof. The Company agrees that no Shares held by the Company will and its counsel shall be tendered in the Offergiven a reasonable opportunity to review and comment on any such written and oral comments and proposed responses.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (New Plan Excel Realty Trust Inc), Agreement and Plan of Merger (Centro Properties LTD)
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and so long as none of the events or conditions circumstances set forth in clauses (a)-(i) of Annex A hereto shall have occurred and be existing, thencontinuing, not later than the first fifth business day after execution from the date of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than Parent shall cause Purchaser to commence (within the fifth business day after meaning of Rule 14d-2 under the date Securities Exchange Act of 1934, as amended (the public announcement of the execution of this Agreement“Exchange Act”)), the Purchaser shall, subject Offer at a price equal to the provisions of this Agreement, commence a tender offer Common Stock Price for the Company Common Stock (including the associated preferred stock purchase rights (the "Offer"“Rights”) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement Agreement, dated as of December 5August 21, 19921998, as amended (the "Company Rights Agreement"), by and between the Company and First Interstate Bank of CaliforniaOxford Transfer & Registrar, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash“Company Rights Agreement””)). The obligation of Purchaser shall to consummate the Offer, to accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration any shares of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares Company Common Stock tendered pursuant to the Offer shall be subject to the those conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made 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 imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. A. It is agreed that the conditions to the Offer set forth in on Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including other than any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser in violation of any of its covenants under this Agreement) or may be waived by and Purchaser expressly reserves the Parent or the Purchaser, in whole or in part at any time and from time to timeright, in its sole discretion. The failure by , to waive any such condition; provided that, without the consent of the Company, Parent or Purchaser shall not waive the Purchaser at any time to exercise any Minimum Condition (except for waivers reducing the Minimum Condition not below a majority of the foregoing rights shall not be deemed outstanding shares of Company Common Stock on a waiver fully diluted basis) or the condition set forth in paragraph (g) of any such right and each such right Annex A. The initial expiration date of the Offer shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or 20th business day following the Purchaser with respect to any commencement of the foregoing conditions Offer in accordance with Rule 14e-1(a) promulgated under the Exchange Act, unless this Agreement is terminated in accordance with Article VIII, in which case the Offer (including, without limitationwhether or not previously extended in accordance with the terms hereof) shall expire on such date of termination (in either case, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer“Expiration Date”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Euramax International PLC), Agreement and Plan of Merger (Euramax International PLC)
